Agricultural Marketing Service
Animal and Plant Health Inspection Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Navy Department
Western Area Power Administration
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Substance Abuse and Mental Health Services Administration
Federal Emergency Management Agency
National Communications System
Fish and Wildlife Service
Land Management Bureau
National Park Service
Employment and Training Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Maritime Administration
Thrift Supervision Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim final rule which decreased the assessment rate established for the Washington-Oregon Fresh Prune Marketing Committee (Committee) for the 2007-2008 and subsequent fiscal periods from $1.75 to $1.00 per ton of prunes handled. The Committee locally administers the marketing order, which regulates the handling of fresh prunes grown in designated counties in Washington and in Umatilla County, Oregon. Assessments upon fresh prune handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins April 1 and ends March 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated.
November 13, 2007.
Robert J. Curry or Gary D. Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, suite 385, Portland, OR 97204; Telephone: (503) 326-2724; Fax: (503) 326-7440; or E-mail:
Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491; Fax: (202) 720-8938; or E-mail:
This rule is issued under Marketing Agreement and Order No. 924 (7 CFR 924), regulating the handling of fresh prunes grown in designated counties in Washington and in Umatilla County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
USDA is issuing this rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Washington-Oregon prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable prunes beginning April 1, 2007, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This rule continues in effect the action that decreased the assessment rate established for the Committee for the 2007-2008 and subsequent fiscal periods from $1.75 to $1.00 per ton of prunes handled.
The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers in designated counties in Washington and in Umatilla County, Oregon. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate was formulated and discussed at a public meeting, thus all directly affected persons had an opportunity to participate and provide input.
For the 2004-2005 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $1.75 per ton of fresh prunes handled. This assessment rate continues in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.
The Committee met on May 29, 2007, and unanimously recommended 2007-2008 expenditures of $9,043 and a decreased assessment rate of $1.00 per ton. In comparison, last year's budgeted expenditures were $5,600, and the assessment rate of $1.00 is $0.75 lower than the rate that had been in effect since the 2004-2005 fiscal period. The Committee recommended the assessment rate change for the purpose of reducing its monetary reserve to a level commensurate with the maximum permitted by the order of approximately one fiscal period's operational expenses (7 CFR 924.42).
The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $4,800 for the management fee, $1,000 for Committee travel expenses, $3,000 for the annual financial audit, and $100 for compliance. In comparison, budgeted expenses for the 2006-2007 season were $4,200, $800, $500, and $100,
The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Washington-Oregon prunes. Applying the $1.00 per ton assessment rate to the Committee's 4,400-ton crop estimate should provide $4,400 in assessment income. This assessment income in addition to approximately $4,643 from the Committee's reserve would be adequate to cover the recommended $9,043 budget for the 2007-2008 fiscal period. As of March 31, 2007, there was $8,815 in the Committee's reserve. The assessment rate established with this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.
Although the assessment rate is effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate the Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2007-2008 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 215 producers of fresh prunes in the regulated production area and approximately 10 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000.
Based on information compiled by both the Committee and the National Agricultural Statistics Service, the average annual revenue from the sale of fresh prunes was approximately $8,440 per producer in 2006. This estimate is based on 215 producers with a total utilized production of 5,200 tons selling for an average of $349 per ton. In addition, based on Committee records and 2006 f.o.b. prices ranging from $14.00 to $16.50 per 30-pound container as reported by AMS Market News Service, the entire Washington-Oregon fresh prune industry handled less than $6,500,000 worth of prunes last season. In view of the foregoing, the majority of Washington-Oregon fresh prune producers and handlers may be classified as small entities.
This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2007-2008 and subsequent fiscal periods from $1.75 to $1.00 per ton. The Committee unanimously recommended 2007-2008 expenditures of $9,043 and the $1.00 per ton assessment rate at the May 29, 2007, meeting. The assessment rate of $1.00 is $0.75 lower than the rate that had been in effect since the 2004-2005 fiscal period. With an estimated 2007-2008 prune crop of 4,400 tons, income from the $1.00 assessment combined with funds from the Committee's monetary reserve should be adequate to cover budgeted expenses. The Committee recommended the lower assessment rate to help decrease the monetary reserve. Funds in the reserve ($8,815 as of March 31, 2007) will be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 924.42).
The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $4,800 for the management fee, $1,000 for Committee travel expenses, $3,000 for the annual financial audit, and $100 for compliance.
The Committee discussed alternatives to this rule, including alternative expenditure levels. Higher assessment rates were considered, but not recommended because of the potential of generating too much income and thus maintaining the reserve fund at an amount higher than program requirements allow.
A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2007-2008 season could average about $325 per ton. Therefore, the estimated assessment revenue for the 2007-2008 fiscal period as a percentage of total producer revenue could approximate 0.31 percent.
This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Washington-Oregon fresh prune industry and all interested persons were invited to attend and participate in the Committee's deliberations on all issues. Like all Committee meetings, the May 29, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.
This action imposes no additional reporting or recordkeeping requirements on either small or large Washington-Oregon fresh prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Furthermore, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
An interim final rule concerning this action was published in the
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.
Plums, Prunes, Marketing agreements, Reporting and recordkeeping requirements.
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:
As a result of a fault report from a Stemme S10-VT operator, an investigation of the differential fuel pressure sensor 11AB-K01 was performed. The fault report describes a fuel leak through the air pressure line into the airbox. The fuel escaped through the drainage tubes. As a result of this investigation, the possibility of a leak to the engine compartment cannot be excluded.
This AD becomes effective November 1, 2007.
On November 1, 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 proposed AD by November 13, 2007.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the
Greg Davison, Glider Program Manager, 901 Locust, Room 301, Kansas City, Missouri 64106; 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 AD No.: 2007-0191-E, dated July 13, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
As a result of a fault report from a Stemme S10-VT operator, an investigation of the differential fuel pressure sensor 11AB-K01 was performed. The fault report describes a fuel leak through the air pressure line into the airbox. The fuel escaped through the drainage tubes. As a result of this investigation, the possibility of a leak to the engine compartment cannot be excluded.
Differential fuel pressure sensor type 11AB-KD was designed end of year 2003 after the end of production of the old differential fuel pressure sensor 11AB-K01. The old differential fuel pressure sensor 11AB-K01 was installed into the serial production until April 2004. The differential fuel pressure sensor 11AB-K01 has a life time limitation of 5 years. The new differential fuel pressure sensor 11AB-KD has no life time limitation.
Stemme AG has issued Service Bulletin A31-10-081, describing the repetitive inspection and ultimate replacement of the old differential fuel pressure sensor 11AB-K01. Some 32 installation kits (11AB-KIT) containing the type 11AB-KD sensor were provided to different owners of Stemme S10-VT aircraft in the period between April 2003 and May 2007. The Stemme-Group has no information about the installation of these kits.
You may obtain further information by examining the MCAI in the AD.
STEMME F & D has issued Service Bulletin A31-10-081, Am.-Index: 01.a, dated June 25, 2007. 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
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 a fuel leak through the drainage tubes was found following the investigation of the differential pressure sensor 11AB-K01. A Stemme S10 VT operator made a fault report describing a fuel leak through the air pressure line into the airbox, prompting the investigation. The fuel escaped through the drainage tubes. As a result of this investigation, the possibility of a leak in the engine compartment cannot be excluded. 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 http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.
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 November 1, 2007.
(b) None.
(c) This AD applies to Stemme Model S10-VT gliders, all serial numbers, certificated in any category.
(d) Air Transport Association of America (ATA) Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
As a result of a fault report from a Stemme S10-VT operator, an investigation of the differential fuel pressure sensor 11AB-K01 was performed. The fault report describes a fuel leak through the air pressure line into the airbox. The fuel escaped through the drainage tubes. As a result of this investigation, the possibility of a leak to the engine compartment cannot be excluded.
Differential fuel pressure sensor type 11AB-KD was designed end of year 2003 after the end of production of the old differential fuel pressure sensor 11AB-K01. The old differential fuel pressure sensor 11AB-K01 was installed into the serial production until April 2004. The differential fuel pressure sensor 11AB-K01 has a lifetime limitation of 5 years. The new differential fuel pressure sensor 11AB-KD has no lifetime limitation.
Stemme AG has issued Service Bulletin A31-10-081, describing the repetitive inspection and ultimate replacement of the old differential fuel pressure sensor 11AB-K01. Some 32 installation kits (11AB-KIT) containing the type 11AB-KD sensor were provided to different owners of Stemme S10-VT aircraft in the period between April 2003 and May 2007. The Stemme-Group has no information about the installation of these kits.
(f) Unless already done, do the following actions.
(1)
(i) Before further flight after November 1, 2007 (the effective date of this AD), insert Stemme S10-VT Flight Manual page 4-2, Amendment No.: 3-SB A31-10-081, date of issue September 9, 1997, as attached to STEMME F & D Service Bulletin A31-10-081, Am.-Index: 01.a, dated June 25, 2007, into the Limitations section of the applicable airplane flight manual (AFM), upgrading the third check item “Daily Inspection” according to chapter 4.3, subchapter 4.3.1 “Engine”:
“* * * installed differential fuel pressure sensor must be checked with fuel cock “OPEN” and main fuel pumps ”ON”, for any signs of leakage in the area of case splitting.”
(ii) If fuel leakage is found during any of the daily checks as required by the AFM insert of paragraph (f)(1)(i) of this AD, before further flight, repair any damage and replace the type 11AB-K01 sensor with the new type 11AB-KD sensor.
(iii) Within 30 days after November 1, 2007 (the effective date of this AD), replace any remaining type 11AB-K01 differential fuel pressure sensors with the new version 11AB-KD sensors.
(iv) After installation of the 11AB-KD differential fuel pressure sensor, remove the additionally introduced page from the Limitations section of the AFM as required by paragraph (f)(1)(i) of this AD. The repetitive daily inspection is no longer required.
(2)
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.:
2007-0191-E, dated July 13, 2007, and STEMME F & D Service Bulletin A31-10-081, Am.-Index: 01.a, dated June 25, 2007, for related information.
(i) You must use STEMME F & D Service Bulletin A31-10-081 Am.-Index: 01.a, dated June 25, 2007 (which includes Flight Manual Stemme S10-VT, page 4-2, Amendment No.: 3-SB A31-10-081, issued September 9, 1997), 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 Stemme GmbH & Co. KG, Gustav-Meyer-Allee 25, D-13355 Berlin, Germany; Telephone: +49-3341-3111-70; Facsimile: +49-3341-3111-73.
(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.
The FAA is adopting a new airworthiness directive (AD) for all Boeing Model 727 airplanes. This AD requires doing an initial detailed inspection for cracks in the aft pressure bulkhead web; repairing any discrepancy; and doing repetitive detailed inspections, and doing related investigative actions, if necessary. This AD results from reports of cracking in the aft pressure bulkhead web. We are issuing this AD to detect and correct a cracked pressure bulkhead web, which could result in rapid decompression of the airplane.
This AD becomes effective November 16, 2007.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of November 16, 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.
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6577; fax (425) 917-6590.
You may examine the 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 727 airplanes. That NPRM was published in the
We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. The commenter, Boeing, supports the NPRM.
We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.
There are about 842 airplanes of the affected design in the worldwide fleet. This AD affects about 459 airplanes of U.S. registry. The detailed inspection takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of this AD for U.S. operators is $36,720, or $80 per airplane.
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 November 16, 2007.
(b) None.
(c) This AD applies to all Boeing Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes, certificated in any category.
(d) This AD results from reports of cracking in the aft pressure bulkhead web. We are issuing this AD to detect and correct a cracked pressure bulkhead web, which could result in rapid decompression of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Do an initial detailed inspection for cracks in the aft pressure bulkhead web in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 727-53-0230, dated January 8, 2007; except as provided by note (a) in Table 1 of paragraph 1.E., “Compliance,” of the service bulletin. Do the inspection at the compliance time identified in paragraph 1.E., “Compliance,” of the service bulletin; except as provided by paragraph (g) of this AD.
(1) If no crack is found, repeat the detailed inspection at the repeat interval identified in paragraph 1.E., “Compliance,” of the service bulletin, except as provided by note (a) in Table 1 of paragraph 1.E., “Compliance,” of the service bulletin.
(2) If any crack is found, before further flight, repair the crack and do the related investigative actions, in accordance with the Accomplishment Instructions of the service bulletin. If any crack, disbonding, or corrosion is found during related investigative actions, before further flight, repair the discrepancy using a method approved in accordance with the procedures specified in paragraph (h) of this AD.
(g) Where Boeing Special Attention Service Bulletin 727-53-0230, dated January 8, 2007, specifies a compliance time after the date of the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
(h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time 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.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(i) You must use Boeing Special Attention Service Bulletin 727-53-0230, dated January 8, 2007, 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 this document 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:
Department of Veterans Affairs.
Final rule.
The Department of Veterans Affairs (VA) is amending its regulations governing the accreditation of representatives of claimants for veterans' benefits. As amended, the regulations require service organizations to recertify the qualifications of their accredited representatives every 5 years, and to notify VA when requesting cancellation of a representative's accreditation based upon misconduct or lack of competence, or if a representative resigns to avoid cancellation of accreditation for misconduct or lack of competence. They also clarify that VA's authority to cancel accreditation includes the authority to suspend accreditation. The purpose of these amendments is to ensure that claimants for veterans' benefits have responsible, qualified representation in the preparation, presentation, and prosecution of claims.
Michael G. Daugherty, Staff Attorney, Office of the General Counsel (022G2), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-6315. This is not a toll-free number.
In a document published in the
After the notice of proposed rulemaking was published, Public Law 109-461 was enacted. Section 101 of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, amends chapter 59 of title 38, United States Code, governing the recognition of individuals for the preparation, presentation, and prosecution of claims for benefits before VA. The amendments to chapter 59, among other things, require VA to: (1) Regulate the qualifications and standards of conduct applicable to accredited agents and attorneys; (2) annually collect information about accredited agents' and attorneys' standing to practice or appear before any court, bar, or Federal or State agency; (3) add to the list of grounds for suspension or exclusion of agents or attorneys from further practice before VA; and (4) subject veterans service organization representatives and individuals recognized for a particular claim to suspension and exclusion from further practice before VA on the same grounds as apply to agents and attorneys.
Section 101 of Public Law 109-461 also amends the fee provisions in chapter 59. Prior to the amendments, section 5904(c)(1) proscribed the charging of fees by agents and attorneys for services provided before a first final Board of Veterans' Appeals (Board) decision in a case. Under the amendments, accredited agents and attorneys may charge fees for representational services provided after the claimant files a notice of disagreement in a case, and may receive fees for representation directly from VA out of past-due benefits paid to claimants.
These various amendments, viewed together, indicate to us that Congress intends VA to treat agents and attorneys in the same manner for purposes of accreditation, suspension or cancellation of accreditation, and payment of fees. To properly implement the provisions of Public Law 109-461, VA will withdraw the provisions of the notice of proposed rulemaking relating to the accreditation of claims agents and will revisit the issue in a later rulemaking.
Based on the rationale described in this document and in the notice of proposed rulemaking, VA adopts the proposed rule as revised in this document.
Five commenters expressed overall support for the concept of periodic recertification of service organization representatives. One of these commenters, a national veterans service organization, while supporting the proposed rule, expressed concern with its ability to recertify hundreds of accredited representatives in a timely manner after VA publishes a final rule. The commenter asked for a 6-month grace period following the effective date of the regulation to achieve initial compliance and asked for a 4-month grace period for each subsequent recertification of an accredited representative. VA acknowledges that many service organizations, by virtue of the size of their operations, will face administrative challenges in recertifying representatives accredited by VA more than 5 years before the effective date of this rule. To address this issue, the rule is being made effective 90 days after the date of publication in the
The delayed effective date and phased initial compliance dates will permit organizations to make conforming changes to their procedures and phase-in the recertification requirements over a 15-month period. We believe that these accommodations are sufficient to avoid undue burdens on recognized organizations. Thereafter, VA intends that organizations will recertify their accredited representatives before the expiration of each 5-year certification period. Accordingly, we will not make further changes based on these comments.
One commenter, a national veterans service organization, requested clarification about proposed § 14.629(a). Specifically, the organization asked whether VA's amendment would require accredited service organization representatives “to take a written examination administered by VA every 5 years as a prerequisite for recertification” as proposed for agents in § 14.629(b)(2). The organization does not support such a requirement for its accredited representatives. Another commenter, a State veterans service organization, expressed similar concern that the rule would impose a new testing requirement for representatives.
It is not VA's intention to impose a new testing requirement for recertification of accredited representatives of service organizations under this rule. Section 14.629(a)
One commenter, a State veterans service organization, objected to the testing requirements in VA's accreditation regulations. However, the successful completion of an examination exists as a requirement for the initial accreditation of claims agents and the initial accreditation of county veterans' service officers recommended by a recognized State organization, not for service organization representatives in general. For the reasons discussed above relating to the enactment of Public Law 109-461, VA will withdraw the proposed amendments requiring periodic recertification of claims agents and will revisit the issue in a later rulemaking.
One commenter, a national veterans service organization, suggested that VA “better define the circumstances under which accreditation can be suspended” and “describe the maximum length of a suspension and the mechanism for obtaining reinstatement.” We agree.
Section 5904(b) permits VA to suspend or exclude agents and attorneys from practice before VA. VA has interpreted section 5902 and its predecessor, 38 U.S.C. 3402, as similarly authorizing the suspension or exclusion of accredited representatives of recognized service organizations.
Concerning the circumstances under which a representative may be suspended, VA believes that further clarification is unnecessary. The plain language of section 5904(b) authorizes VA to suspend or exclude from further practice before VA agents or attorneys found incompetent or to have engaged in misconduct. Congress' recent amendment of section 5902 in Public Law 109-461 codifies VA's longstanding interpretation of section 5902 by providing VA with authority to suspend the accreditation of representatives or exclude them from further practice before VA on the same grounds as apply to agents and attorneys. VA's decision to suspend or cancel an individual's accreditation will be based on the facts and circumstances of the particular case, with suspension being appropriate in cases involving extenuating circumstances or less egregious conduct not warranting permanent cancellation of accreditation.
Two commenters disagreed with the proposed requirement for an organization to inform VA of the reasons for requesting cancellation of a representative's accreditation under 38 CFR 14.633(a) when the request is due to the representative's misconduct or lack of competence or because the representative resigned to avoid cancellation of accreditation based upon misconduct or lack of competence.
One commenter, a national service organization, expressed concern that the proposed requirement would create an adversarial relationship between the employer service organization and employee representative and that it would create “a potential ethical conflict in situations where the representative is also represented by the organization to which he or she is accredited.” According to this organization, “[p]roviding the VA with information that may potentially adversely impact the representative's entitlement to VA benefits is in direct conflict with the organization's obligation as the individual's representative.” We disagree.
Under the law governing recognition, service organizations have a legal duty to assist VA in ensuring the competent representation of claimants before The Department. Section 5902(a) of title 38, United States Code, authorizes VA to recognize organizations for the limited purpose of ensuring competent representation of veterans in the preparation, presentation, and prosecution of claims for VA benefits.
Under current § 14.633(c) and (d), cancellation of accreditation is mandatory if the General Counsel finds that a representative engaged in misconduct or that a representative's performance before the Department demonstrates a lack of the degree of competence necessary to adequately prepare, present, and prosecute claims. However, under current § 14.633(a), service organizations may request cancellation of a representative's accreditation without informing VA of the reason for the request. The amendments to § 14.633(a), which
The practice of cross-accreditation is defined in 38 CFR 14.627(i) as “accreditation based on the status of a representative as an accredited and functioning representative of another organization.” Although cross-accreditation enhances claimants' opportunities for representation, it may conceal a representative's misconduct or incompetence absent the amendments to § 14.633(a) in this rule. Consider the situation where a representative, accredited by several organizations, is discharged for an offense at one organization that, if proven, would clearly lead to cancellation of accreditation by VA. If the organization does not report the reason for the discharge to VA when requesting cancellation of the representative's accreditation, the individual's accreditations through other organizations remain valid and the representative may continue to provide representation through those organizations. As a result, an individual who engages in unlawful, unethical or unprofessional acts or is incompetent may continue to represent veterans.
An additional rationale for the amendment requiring notification is the situation where a representative ends his or her affiliation with the organization in order to avoid cancellation of accreditation based on misconduct and then applies for accreditation through another organization that has no knowledge of the misconduct. In this case, without knowledge of the previous misconduct, VA would likely accredit the representative through the new organization based upon the new organization's unknowing certification. Certainly, if a representative engages in misconduct or provides incompetent representation at one organization, VA should not accredit the individual through another organization. This rule, which requires organizations to notify VA of the reason for requesting cancellation of a representative's accreditation if that reason involves misconduct or incompetence, closes these gaps and better ensures the competent representation of claimants. VA believes that these benefits greatly outweigh any potential effect on the employer/employee relationship between organizations and their representatives.
Regarding the commenter's concern about a potential adverse impact on a veteran's benefit entitlements by virtue of the obligation to inform VA of misconduct or incompetence, the service organizations' duty to inform provides VA with the information necessary to investigate misconduct and incompetence and ensure competent representation of claimants. It is not clear how information about a representative's misconduct or incompetence could adversely affect his or her own entitlement to VA benefits, unless the information relates to a scheme of fraud in obtaining benefits. Although an organization's primary purpose is to serve veterans, clearly this obligation does not include concealing fraud against the United States.
Recent changes in the law governing representation reinforce the obligation of service organizations to report a representative's misconduct or incompetence to VA. As discussed earlier, Public Law 109-461 amended 38 U.S.C. 5904(a) to require VA to regulate the qualifications and standards of conduct applicable to accredited agents and attorneys. Amended section 5902(b)(2) subjects veterans service organization representatives to suspension and exclusion from further practice before VA on the same grounds as apply to agents and attorneys. VA's statutory obligation to regulate the standards of conduct of accredited representatives as reflected in amendments to chapter 59 requires that organizations fulfill the reporting obligations described in § 14.633(a). In May 2007, we published in the
The commenter also expressed concern about the disclosure of disaccreditation information providing a basis for claimants to seek readjudication of numerous claims. However, VA decisions are final absent reopening based on new and material evidence or a finding of clear and unmistakable error (CUE) in a prior regional office or Board of Veterans' Appeals (Board) decision.
The commenter suggested that “very few individuals would be brought to the attention of the VA” for misconduct or incompetence because it is likely those individuals would resign before any allegations of misconduct or incompetence were ever substantiated. The situation described by the organization is foreseeable under current § 14.633(a) and under the amendments made by this rule. While VA recognizes that individuals may resign before any incompetence or misconduct is substantiated as a means to avoid a formal inquiry, this does not mean that VA should forego any effort to improve the quality of representation in cases where an organization has determined that misconduct or incompetence is sufficient to request cancellation of VA accreditation. With the rule in effect, the organization will be required to inform VA that a request to cancel accreditation under § 14.633(a) is based upon misconduct, incompetence, or resignation to avoid cancellation of accreditation for misconduct or incompetence. Upon receipt of such information, when appropriate, VA will initiate the procedures under 38 CFR 14.633(e) to determine whether the representative should be barred from further representation of VA claimants. As a result, VA, in cooperation with service organizations, will seek to ensure the competent representation of claimants.
Another commenter, a State organization, expressed disagreement with the proposed requirement to notify VA in cases of cancellation of accreditation for misconduct “unless [VA] assumes all potential civil liability for the accrediting organizations.” The organization expressed concern that it might incur civil liability as a result of a lawsuit brought by a representative after it provides accreditation cancellation information to VA.
VA cannot guarantee immunity from civil suit, nor can it underwrite an organization's potential liability resulting from civil suit. While VA acknowledges the potential for civil liability in a defamation action under state law for disclosure of employment-related information, this is a risk incurred by all employers in providing information about former employees to current or potential employers. The sole purpose of the requirement that service organizations disclose the reason for requesting cancellation of a representative's accreditation is to
Most States have statutory or common law provisions that establish truth as a defense in defamation actions and protect certain communications as privileged. Communication of accreditation cancellation information to VA by a service organization, without malice, and within accepted limits, would generally be privileged and thus not likely to result in liability for defamation damages. Even in the absence of a privilege, the publication of a true statement by a service organization to VA would not lead to liability for defamation.
This document contains provisions constituting collections of information at 38 CFR 14.629(a), 14.629(b), and 14.633(a) under the Paperwork Reduction Act (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) has approved these collections and has assigned OMB control number 2900-0018.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C 601-602). This rule will affect the 87 veterans service organizations recognized by VA to represent benefit claimants. However, the rule would not have a significant economic impact on these organizations because it would only impose certification requirements the costs of which would not be significant. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the final regulatory flexibility analysis requirements of section 604.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this final rule and has concluded that it is a significant regulatory action under Executive Order 12866 because it raises novel policy issues.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.
There are no Federal Domestic Assistance programs associated with this final rule.
Administrative practice and procedure, Claims, Courts, Foreign relations, Government employees, Lawyers, Legal services, Organizations and functions (Government agencies), Reporting and recordkeeping requirements, Surety bonds, Trusts and trustees, Veterans.
5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 515, 5502, 5902-5905; 28 CFR part 14, appendix to part 14, unless otherwise noted.
(a)
The revisions and addition read as follows:
(a) Accreditation may be suspended or canceled at the request of an agent, attorney, representative, or organization. When an organization requests suspension or cancellation of the accreditation of a representative due to misconduct or lack of competence on the part of the representative or because the representative resigned to avoid suspension or cancellation of accreditation for misconduct or lack of competence, the organization shall inform VA of the reason for the request for suspension or cancellation and the facts and circumstances surrounding any incident that led to the request.
(e) * * *
(2) * * *
(i) As to representatives, suspend accreditation immediately and notify the representative and the representative's organization of the interim suspension and of an intent to cancel or continue suspension of accreditation. The notice to the representative will also state the reasons for the interim suspension and impending cancellation or continuation of suspension, and inform the representative of a right to request a hearing on the matter or to submit additional evidence within 10 working days following receipt of such notice. Such time may be extended for a reasonable period upon a showing of sufficient cause.
(g) The General Counsel may suspend the accreditation of a representative, agent, or attorney, under paragraphs (b), (c), or (d) of this section, for a definite period or until the conditions for reinstatement specified by the General Counsel are satisfied. The General Counsel shall reinstate an individual's accreditation at the end of the suspension period or upon verification that the individual has satisfied the conditions for reinstatement.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action under the Clean Air Act to approve a revision to the San Francisco Bay Area portion of the California State Implementation Plan (SIP). This revision consists of transportation conformity criteria and procedures related to interagency consultation and enforceability of certain transportation-related control measures and mitigation measures. The intended effect is to update the transportation conformity criteria and procedures in the applicable SIP.
This rule is effective on December 11, 2007 without further notice, unless EPA receives adverse comments by November 13, 2007. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA-R09-OAR-2007-0657, by one of the following methods:
1.
2.
3.
Ginger Vagenas, EPA Region IX, (415) 972-3964,
Throughout this document, “we,” “us” and “our” refer to EPA. This supplementary information section is arranged as follows:
Transportation conformity is required under section 176(c) of the Clean Air Act (CAA or Act) to ensure that federally supported highway, transit projects, and other activities are consistent with (“conform to”) the purpose of the SIP. Conformity currently applies to areas that are designated nonattainment, and to areas that have been redesignated to attainment after 1990 (maintenance areas) with plans developed under section 175A of the Act, for the following transportation related criteria pollutants: Ozone, particulate matter (PM
Conformity to the purpose of the SIP means that transportation activities will
EPA promulgated the Federal transportation conformity criteria and procedures (the conformity rule) on November 24, 1993. See 58 FR 62188. Among other things, the rule required states to address all provisions of the conformity rule in their SIPs (“conformity SIPs”). Under 40 CFR 51.390, most sections of the conformity rule were required to be copied verbatim. States were also required to tailor all or portions of the following three sections of the conformity rule to meet their state's individual circumstances: 40 CFR 93.105, which addresses consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses written commitments to control measures that are not included in a metropolitan planning organization's (MPO's) transportation plan and transportation improvement program that must be obtained prior to a conformity determination, and the requirement that such commitments, when they exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written commitments to mitigation measures that must be obtained prior to a project-level conformity determination, and the requirement that project sponsors must comply with such commitments, when they exist.
On August 10, 2005, the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU) was signed into law. SAFETEA-LU revised section 176(c) of the Clean Air Act's transportation conformity provisions. One of the changes streamlines the requirements for conformity SIPs. Under SAFETEA-LU, states are required to address and tailor only three sections of the conformity rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), and, 40 CFR 93.125(c), described above. In general, states are no longer required to submit conformity SIP revisions that address the other sections of the conformity rule. These changes took effect on August 10, 2005, when SAFETEA-LU was signed into law.
For transportation planning purposes, the San Francisco Bay Area is defined as the nine California counties of Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma. All but the eastern half of Solano County and the northern half of Sonoma County lie within the San Francisco Bay Area 8-hour ozone nonattainment area. The eastern half of Solano County is also designated nonattainment for the ozone NAAQS but is included in the Sacramento Metropolitan air quality planning area.
On December 16, 1996, the Governor's designee for SIP submittals, the California Air Resources Board (ARB), submitted “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures” (“conformity procedures”) and “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Interagency Consultation Procedures” (“consultation procedures”), together referred to as the “San Francisco Bay Area conformity SIP” to EPA. EPA approved the San Francisco Bay Area conformity SIP on October 21, 1997. See 62 FR 54587. ARB submitted a revision to the San Francisco Bay Area conformity SIP on August 6, 1998. EPA did not act on that submittal.
Subsequent to SAFETEA-LU being enacted, the co-lead agencies for air quality planning in the San Francisco Bay Area—Bay Area Air Quality Management District (BAAQMD), Metropolitan Transportation Commission (MTC), and Association of Bay Area Governments (ABAG)—revised the San Francisco Bay Area conformity SIP to reflect the SAFETEA-LU changes and to clarify interagency consultation procedures. Resolutions approving the revised transportation conformity criteria and procedures, referred to as the transportation conformity protocol, were adopted by the BAAQMD Board of Directors on July 19, 2006, by the ABAG Executive Board on July 20, 2006, and by the MTC Commission on July 26, 2006. MTC subsequently forwarded the transportation conformity protocol to ARB, and ARB adopted and submitted the protocol to EPA as a revision to the California SIP on December 20, 2006. The December 20, 2006 SIP revision submittal supersedes the August 6, 1998 submittal.
The SIP revision submitted to EPA on December 20, 2006, consists of the San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures. The submittal documents public notice and hearing for this SIP revision in compliance with CAA section 110(l) and 40 CFR 51.102. The submittal also contains a request that we delete the analogous SIP-approved conformity procedures, which are no longer required under SAFETEA-LU, and replace them with the submitted language that addresses 40 CFR 93.122(a)(4)(ii) and 93.125(c). When the SIP-approved conformity procedures are rescinded, the Federal transportation conformity regulations will apply, except for those sections addressed by the current submittal. EPA approval of these changes is consistent with Federal law and regulations, and will obviate the need for SIP revisions that would have otherwise been triggered by changes to the underlying Federal regulations.
The submittal also includes provisions that would replace the SIP-approved interagency consultation procedures with revised procedures.
We have reviewed the submittal to assure consistency with the Clean Air Act as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 and 40 CFR 51.390) governing state procedures for transportation conformity and interagency consultation and have concluded that the submittal is approvable. Details of our review are set forth in a technical support document (TSD), which has been included in the docket for this action. Specifically, in our TSD, we identify how the submitted procedures satisfy our requirements under 40 CFR 93.105 for interagency consultation with respect to the development of transportation plans and programs, SIPs, and conformity determinations, the resolution of conflicts, and the provision of adequate public consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for enforceability of control measures and mitigation measures.
Under section 110(k) of the Act, and for the reasons set forth above, EPA is taking action to approve the San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures, as a revision to the California SIP. As a result of this action, the Bay Area's previously SIP-approved conformity protocol will be replaced by the procedures adopted by BAAQMD on July 19, 2006, by ABAG on July 20, 2006, and by MTC on July 26, 2006, and submitted by ARB to EPA on December 20, 2006.
We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
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
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, August 10, 1999). This action merely approves state law implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.
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 December 11, 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
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(349) San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures was submitted on December 20, 2006, by the Governor's designee.
(i) Incorporation by reference.
(A) Association of Bay Area Governments (ABAG), Bay Area Air Quality Management District (BAAQMD), and Metropolitan Transportation Commission (MTC).
(
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to approve a revision to the Florida State Implementation Plan (SIP) submitted on March 16, 2007. This revision addresses the requirements of EPA's Clean Air Interstate Rule (CAIR) promulgated on May 12, 2005, and subsequently revised on April 28, 2006, and December 13, 2006. EPA has determined that the SIP revision fully implements the CAIR requirements for Florida. As a result of this action, EPA will also withdraw, through a separate rulemaking, the CAIR Federal Implementation Plans (FIPs) concerning sulfur dioxide (SO
CAIR requires States to reduce emissions of SO
This rule is effective on November 13, 2007.
EPA has established a docket for this action under Docket ID No. EPA-R04-OAR-2007-0360. All documents in the docket are listed on the
Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9042. Ms. Harder can also be reached via electronic mail at
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
EPA is taking final action to approve a revision to Florida's SIP submitted on March 16, 2007. In its SIP revision, Florida has met the CAIR requirements by requiring certain electric generating units (EGUs) to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO
EPA proposed to approve Florida's request to amend the SIP on August 2, 2007 (72 FR 42344). In that proposal, EPA also stated its intent to withdraw the FIP, as described above. The comment period closed on September 4, 2007. EPA received one comment from a consortium of regulated entities in support of our proposed approval. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and in this final action.
CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the NAAQS for PM
CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act (CAA) with regard to interstate transport with respect to the 8-hour ozone and PM
CAIR establishes State-wide emission budgets for SO
The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that States must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs.
With two exceptions, only States that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for States that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for States that include all non-EGUs from their NO
In this action, EPA is taking final action to approve Florida's SIP revision that adopts the budgets established for the State in CAIR, i.e., 99,445 (2009-2014) and 82,871 (2015-thereafter) tons for NO
Florida has committed to revising the definitions of “permitting authority” and “State” in its CAIR rules in order to ensure that allowances issued by all States with approved rules providing for participation in the respective EPA-administered cap-and-trade programs are fungible and can be traded and used by all sources in all these States, as intended. EPA determined after review of other States' rules, but after Florida had adopted its CAIR rules, that there was an issue related to these definitions when they refer only to a specific State.
In Florida's rules for CAIR, the EPA model trading rules were revised to limit all references to “permitting authority” to refer to the Florida Department of Environmental Protection. Similarly, references to “State” were limited to refer to Florida. These changes are acceptable in most, but not all, instances under the current model rules. In certain definitions in the model rules incorporated by Florida (i.e., “allocate” or “allocation,” “CAIR NO
On May 24, 2007, EPA participated in a teleconference with Florida and outlined necessary definition revisions. EPA received a letter from Florida dated June 22, 2007, and a supplemental electronic mail submission on July 11, 2007, that provide a commitment to make these rule revisions in its CAIR rules in early 2008. Specifically, in the June 22, 2007, letter and supplemental submission on July 11, 2007, Florida commits to revising section 62-296.470(1) of Florida's rule to state that: The limitation of the “permitting authority” definition only to Florida does not apply when this term is used in the definitions of “ `allocate’ or ‘allocation’,” “CAIR NO
The CAIR NO
The provisions of the CAIR SO
EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO
In the SIP revision, Florida has chosen to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO
Under the NO
States may establish in their SIP submissions a different NO
Florida has chosen to adopt the provisions of the CAIR NO
Florida has chosen to replace the provisions of the CAIR NO
CAIR establishes a compliance supplement pool to provide an incentive for early reductions in NO
The CAIR annual NO
Florida has chosen to distribute CSP allowances using the allocation methodology provided in 40 CFR 96.143, and has adopted this section by reference.
The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015.
States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all.
Florida has chosen not to allow non-EGUs meeting certain requirements to opt into the CAIR trading programs.
EPA is taking final action to approve Florida's full CAIR SIP revision submitted on March 16, 2007. Under this SIP revision, Florida is choosing to participate in the EPA-administered cap-and-trade programs for SO
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 would impose 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
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, August 10, 1999). This action merely approves a State rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a State rule implementing a federal standard.
In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. 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 CAA. 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
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 11, 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, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities, where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP), that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date, contact the appropriate FEMA Regional Office.
David Stearrett, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001
In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
42 U.S.C. 4001
Federal Communications Commission.
Final rule.
In this Order, the Commission establishes a new framework to govern the provision of in-region, long distance services by the Bell Operating Companies (BOCs) and their independent incumbent local exchange carrier (incumbent LEC) affiliates. The new framework permits the BOCs to provide in-region, interstate, long distance services either directly or through affiliates that are neither section 272 separate affiliates nor Commission rule 64.1903 separate affiliates, subject to nondominant carrier regulation, as long as they comply with certain targeted safeguards and other continuing statutory and regulatory obligations.
The Report and Order is effective November 13, 2007, subject to Office of Management and Budget (OMB) approval for new or modified information collection requirements contained in the Report and Order. The FCC will publish a document in the
Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
Melissa Kirkel, Wireline Competition Bureau, (202) 418-1580.
For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Jerry R. Cowden at (202) 418-0447, or via the Internet at
This is a summary of the Commission's Report and Order and Memorandum Opinion and Order (Order) in WC Docket Nos. 02-112 and 06-120, and CC Docket No. 00-175, FCC 07-159, adopted August 30, 2007, and released August 31, 2007. The text of this document is available for inspection and copying during
1. In May 2002, the Commission initiated a rulemaking proceeding (the
2. In May 2003, the Commission issued a
3. In this Order, the Commission establishes a new framework to govern the provision of in-region, long distance services by the BOCs and their independent incumbent LEC affiliates. This framework replaces unnecessarily burdensome regulation with less intrusive measures that protect important customer interests while allowing the BOCs and their independent incumbent LEC affiliates to respond to marketplace demands efficiently and effectively. The Commission finds that this new framework will increase the BOCs' and the BOC affiliates' ability to develop and deploy innovative long distance services that meet their customers' needs.
4. The new framework, which applies to AT&T, Qwest, and Verizon, is consistent with the Commission's decision in the
5. In the Order, the Commission considers whether each BOC, if it provides in-region, interstate and international, long distance services through an affiliate that is not compliant with section 272, could exercise market power with respect to such services by either: (1) Unilaterally raising the retail price of its in-region, interstate, long distance services (i.e., exercising “classical” market power); or (2) using its control over bottleneck local facilities to raise its rivals' costs (i.e., exercising “exclusionary” market power). The Commission concludes that the BOCs lack market power with respect to interstate, long distance services and in-region, international telecommunications services. The Commission further concludes, however, that the BOCs have failed to demonstrate that they lack exclusionary market power with regard to these services by reason of their control over ubiquitous telephone exchange service and exchange access networks. The Commission therefore assumes, for the purposes of this proceeding, that each of the BOCs individually continues to possess exclusionary market power within its respective region by reason of its control over these bottleneck access facilities.
6. In the Order, the Commission finds that application of dominant carrier regulation to AT&T's, Verizon's, and Qwest's in-region, interstate, long distance services is unwarranted. First, as the market analysis indicates, AT&T, Qwest, and Verizon do not possess classical market power in the provision of in-region, interstate, long distance services, which is the type of market power that dominant carrier regulation is designed to address. Second, as the Commission recognized in the
7. While the Commission recognizes that dominant carrier regulation of AT&T's, Qwest's, and Verizon's in-region, long distance services could provide some increased level of protection against the exercise of exclusionary market power beyond that provided by these alternative safeguards, such regulation would impose significant costs. These costs include the administrative costs imposed on both the carriers and the Commission that are associated with price regulation, tariff-filing requirements, and reporting requirements. Application of dominant carrier regulation to these services also would restrict AT&T's, Qwest's, and Verizon's ability to respond to competitors' pricing and product initiatives, and would give competitors advance notice of AT&T's, Qwest's, and Verizon's own pricing plans and new products. By impeding the BOCs' ability to compete, these requirements could dampen competition. Given the relative inefficiency of dominant carrier regulation in constraining the exercise of exclusionary market power and the significant costs associated with such regulation, the Commission finds that alternative safeguards adopted in this Order are more cost-effective than, and
8. Thus, the Commission finds the BOCs to be nondominant in the provision of in-region, interstate, long distance services that they provide either directly or through affiliates that are not section 272 separate affiliates as long as they comply with certain targeted safeguards adopted in the Order as well as continuing statutory and regulatory obligations. The Commission also finds the BOCs' independent incumbent LEC affiliates to be nondominant in the provision of in-region, long distance services either directly or through affiliates that are not Commission rule 64.1903 separate affiliates.
9. The Commission further finds no practical distinctions between the BOCs' incentives and ability to use any in-region market power in their provision of international services on the one hand, and interstate long distance services on the other. Accordingly, to the extent the BOCs and their independent incumbent LEC affiliates are deemed nondominant in the provision of any in-region, international telecommunications service provided through a section 272 or Commission rule 64.1903 separate affiliate, the Commission finds them to be nondominant in the provision of that service in the event they choose to provide it directly or through an affiliate that is not a section 272 or Commission rule 64.1903 separate affiliate, subject to their compliance with the targeted safeguards set forth in the Order.
10. In view of the Commission's nondominance determinations in the Order, the Commission finds that, subject to the conditions set forth in the Order, AT&T, Verizon, and Qwest are no longer subject to the requirements in section 203 of the Act (47 U.S.C. 203) and certain of the Commission's price cap, rate of return, and tariffing rules with respect to in-region, interstate and international, long distance services. Specifically: (1) AT&T, Verizon, and Qwest are not required to, and are in fact barred from, filing tariffs for in-region, interstate and international, long distance services pursuant to section 203 of the Act and § 61.31 through 61.38, and 61.43 of the Commission's rules (47 CFR 61.31 through 61.38; 47 CFR 61.43); (2) AT&T, Verizon, and Qwest are not required to establish an “interexchange basket” pursuant to § 61.42(d)(4) of the Commission's rules (47 CFR 61.42(d)(4)), to the extent that § 61.42(d)(4) would require the establishment of an interexchange basket for the services covered by this Order when those services are provided directly or through an affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate; and (3) AT&T, Verizon, and Qwest need not comply with § 61.28 of the Commission's rules (47 CFR 61.28) for the provision of in-region, international telecommunications services to the extent that, and only to the extent that, the BOCs or their affiliates that are neither section 272 nor Commission rule 64.1903 separate affiliates would be treated as dominant carriers under § 61.28 for no other reason than their provision of in-region, international telecommunications services. To the extent that the BOCs or their affiliates that are neither section 272 nor Commission rule 64.1903 separate affiliates otherwise would be treated as dominant carriers under § 61.28, this Order has no effect on that treatment.
11. The Commission also finds that, subject to the conditions set forth in the Order, AT&T, Qwest, and Verizon are not subject to certain of the Commission's discontinuance and streamlined transfer of control rules in connection with their in-region, interstate and international, long distance services. Specifically, AT&T, Qwest, and Verizon are not subject to §§ 63.03, 63.19, 63.21, 63.23, and 63.60 through 63.90 of the Commission's rules (47 CFR 63.03, 63.19, 63.21, 63.23, 63.60 through 63.90) for their provision of in-region, interstate and international, long distance services to the extent that, and only to the extent that, the BOCs or their affiliates would be treated as dominant carriers under these rules for no reason other than their provision of those services directly or through an affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate. To the extent that the BOCs or their affiliates otherwise would be treated as dominant carriers under these rules, that treatment shall continue.
12. The Commission further finds that, subject to the conditions set forth in the Order, AT&T, Qwest, and Verizon are not subject to § 43.51 of the Commission's rules (47 CFR 43.51) with respect to their provision of in-region, interstate or international, long distance services directly or through an affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate. Specifically, the BOCs and their affiliates are not subject to § 43.51 of the Commission's rules with respect to their provision of in-region, interstate or international, long distance services directly or through an affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate to the extent that, and only to the extent that, the BOCs or their affiliates would be treated as dominant carriers under § 43.51 for no other reason than their provision of in-region, interstate or international, long distance services directly or through an affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate. To the extent that the BOCs or their affiliates otherwise would be treated as dominant carriers under § 43.51, that treatment shall continue.
13. Because the Commission finds that the section 272 safeguards impose significant costs and that other less costly safeguards adequately address the concerns raised by the BOCs' possession of exclusionary market power, the Commission declines to impose on the BOCs the section 272 safeguards that have sunset. The Commission finds that the section 272 safeguards impose a variety of costs, including administrative costs on both the BOCs and the Commission. For example, providing interstate, interLATA telecommunications services through a section 272 separate affiliate requires the BOCs, inter alia, to operate these services independently of their telephone exchange service and exchange access operations, and to maintain duplicate sets of officers, directors, and employees. These restrictions not only impose additional costs, but also prevent the BOCs from taking advantage of the economies of scope and scale associated with integrated operation that their competitors are able to realize. Moreover, structural separation between a BOC's local telephone and long distance operations is at odds with a market environment where the distinction between those local and long distance services has been blurred by the way those services are marketed and delivered to consumers. As a general matter, these restrictions and their associated costs make the BOCs less effective competitors in the market. These restrictions also may prevent the BOCs and their affiliates from quickly responding to technological and marketplace developments.
14. The Commission also finds good cause to waive § 64.1903 of the Commission's rules for the BOCs' independent incumbent LEC affiliates, SNET, including Woodbury, and former GTE. The Commission finds that the concerns regarding the costs of the section 272 safeguards effectively apply to both the BOCs and their independent incumbent LEC affiliates. Therefore, the Commission finds that AT&T and Verizon can more effectively implement the new regulatory framework adopted in the Order if their independent incumbent LEC affiliates are subject to
15. AT&T, Verizon, and Qwest remain subject to a number of legal obligations that are an important component of the regulatory framework that the Commission finds appropriate for the BOCs and their independent incumbent LEC affiliates. In particular, these carriers are still subject to: dominant carrier regulation of their interstate exchange access services, including price cap regulation of most exchange access services; the Commission's accounting and cost allocation rules and related reporting requirements; equal access obligations under longstanding Commission precedent and section 251(g) of the Act (
16. In addition, in this Order the Commission adopts targeted safeguards that will apply to the BOCs to the extent they choose to provide in-region, interstate or international, long distance services either directly or through an affiliate that is not a section 272 separate affiliate. As a further condition of this Order, the BOCs' independent incumbent LEC affiliates also must comply with these safeguards to the extent they provide in-region, interstate, interexchange telecommunications services either directly or through an affiliate that does not comply with the requirements of either section 272 or § 64.1903 of the Commission's rules. The targeted safeguards include: (1) Special access performance metrics to prevent non-price discrimination in the provision of special access services; (2) imputation requirements to help monitor BOC provisioning of these services for possible price discrimination; (3) the offering of calling plans to protect residential customers who make few interstate, long distance calls; and (4) providing subscribers monthly usage information to enable them to make cost-effective decisions concerning alternative long distance plans.
17.
18. The Commission finds that the metrics the Commission approved in the
19. Each BOC and each of AT&T's and Verizon's independent incumbent LEC affiliates shall implement these metrics to the extent the BOC or independent incumbent LEC provides one or more of the covered special access services to itself, to any affiliate, or to third parties. The BOCs and their independent incumbent LEC affiliates shall provide the Commission with their performance measurement results on a quarterly basis.
20.
21. In order to ensure the BOCs' continued compliance with their imputation obligations under section 272(e)(3), the Commission directs each BOC to continue to impute to itself its highest tariffed rate for access, including access provided over joint-use facilities. The Commission also requires AT&T's and Verizon's independent incumbent LEC affiliates, as a condition of the waiver granted to them in the Order, to comply with the same requirement with regard to their provision of access to any in-region, long distance services that they provide directly. In addition, the Commission requires the BOCs and
22. Section 69.727(a)(iii) of the Commission's rules (47 CFR 69.727(a)(iii)) requires that a price cap LEC cannot provide contract tariff services to either a section 272 separate affiliate or a Commission rule 64.1903 affiliate until after it “certifies to the Commission that it provides service pursuant to that contract tariff to an unaffiliated customer.” To ensure that equivalent protection is in place in the event the BOCs provide in-region, long distance services directly, the Commission requires that each AT&T, Verizon, and Qwest incumbent LEC provide such a certification to the Commission prior to providing contract tariff services to itself or to any affiliate that is neither a section 272 nor a Commission rule 64.1903 separate affiliate for use in the provision of any in-region, long distance services.
23. The Commission requires that AT&T, Qwest, and Verizon revise the cost allocation manuals they filed pursuant to § 64.903 of the Commission's rules (47 CFR 64.903) to include their imputation methodologies, which will be subject to public comment. The Commission also requires AT&T, Qwest, and Verizon to revise their cost allocation manuals to include a description of how their provision of access services will comply with the affiliate transaction rules, to the extent they will offer in-region, interstate, long distance service through an affiliate that is not a section 272 separate affiliate or a Commission rule 64.1903 affiliate. Consistent with the Commission's findings in the
24. Finally, under the Commission's rules, amounts imputed to each BOC's, or BOC independent incumbent LEC affiliate's, in-region, long distance operations pursuant to section 272(e)(3) and the Order must be debited to account 32.5280 (47 CFR 32.5280), which includes nonregulated operating revenue. To facilitate transparency of each carrier's imputation of in-region, long distance costs, the Commission requires AT&T, Qwest, and Verizon, as a condition of the Order, to include the imputation charges it debits to account 32.5280 in its ARMIS filings, accompanied by an explanatory footnote for each line item identifying the amount imputed. This requirement should pose at most a minimal additional burden to the carriers because they already record imputation charges in a subsidiary record account for revenues derived from regulated services treated as nonregulated for federal accounting purposes, and already must file ARMIS reports.
25.
26.
27. The Commission finds that the new regulatory framework adopted in this Order is preferable to the regulatory requirements previously in place for the BOCs and their independent incumbent LEC affiliates. In particular, the Commission finds that the new framework imposes significantly fewer costs than the prior regulations. Because the new framework does not involve retail price regulation or tariff filing with respect to in-region interLATA telecommunications services, it imposes fewer costs than would dominant carrier regulation. The new framework also does not impose the costs and inefficiencies associated with the full section 272 safeguards, including the costs and inefficiencies from maintaining structural separation between local telephone and long distance operations, operating these services independently, and maintaining duplicate sets of officers, directors, and employees. In addition, the new framework does not impose the same constraints on the ability of the BOCs and their independent incumbent
28. This document contains new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public to comment on the information collection requirements contained in this Order as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13. Public and agency comments are due December 11, 2007. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Pub. L. 107-198,
29. In this document, the Commission has assessed the effects of the new or modified information collection requirements adopted in this Order, and finds that they do not affect businesses with few than 25 employees.
In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Jerry R. Cowden, Federal Communications Commission, 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to
30. The Commission will send a copy of this Report and Order and Memorandum Opinion and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
31. In this Order, the Commission establishes a new framework to govern the provision of in-region, long distance services by AT&T, Qwest, and Verizon. This new framework replaces burdensome regulation with less intrusive measures that protect important customer interests while allowing AT&T, Qwest, and Verizon to respond to marketplace demands efficiently and effectively. The issues addressed by the Commission in this Order directly affect only the BOCs and their affiliates, which do not qualify as small entities under the RFA. In particular, none of the BOCs is a small entity because each BOC is an affiliate of a Regional Holding Company (RHC), and all of the BOCs or their RHCs have more than 1,500 employees. Insofar as this Order applies to other BOC or RHC affiliates, those affiliates are controlled by the BOCs or by the RHC. Accordingly, they are not “independently owned and operated” entities for purposes of the RFA.
32. Therefore, the Commission finds that the requirements adopted in this Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Order including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996.
33. Accordingly,
34.
35.
36.
37.
38.
39.
40.
Accounting, Communications common carriers, Reporting and recordkeeping requirements, Telephone, Telecommunications.
Federal Election Commission.
Notice of public hearing.
The Federal Election Commission is announcing a public hearing on the proposed changes to its rules governing “electioneering communications” under the Federal Election Campaign Act of 1971, as amended.
The hearing will be held on Wednesday, October 17 and Thursday, October 18, 2007, and will begin at 10 a.m. each day.
Commission hearings are held in the Commission's ninth floor meeting room, 999 E Street, NW., Washington, DC.
Mr. Ron Katwan, Assistant General Counsel, 999 E Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On August 31, 2007 (72 FR 50261), the Commission published a Notice of Proposed Rulemaking (“NPRM”) proposing revisions to its rules governing “electioneering communications” under the Federal Election Campaign Act of 1971, as amended. In the NPRM, the Commission stated it would hold a hearing on the proposed rules on October 17, 2007. The Commission has determined that an additional day of public hearing will be necessary to accommodate all those who wish to appear. Accordingly, the hearing will be held on Wednesday, October 17 and Thursday, October 18, 2007.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (NPRM); reopening of the comment period.
We are revising an earlier NPRM 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:
One P-180 aircraft experienced a jamming of its longitudinal flight control cables. Investigations revealed that its fuselage drain holes were plugged, and water was trapped in the lower fuselage.
As a consequence of plugged drain holes, water can accumulate and freeze when the aircraft reaches and holds altitudes where temperature is below the freezing point. If not corrected this may cause the loss of control of the airplane.
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 November 13, 2007.
You may send comments by any of the following methods:
•
•
•
•
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 invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the
Since that NPRM was issued, we determined that the original service bulletin includes affected pages of the Piaggio P.180 Avanti Maintenance Manual (AMM) that should become part of the AD.
Piaggio Aero Industries S.p.A has issued Mandatory SB-80-0220, dated August 8, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
We have considered the following comments received on the earlier NPRM.
We included in the NPRM a repetitive inspection requirement to check for proper drain operation. We received a clarification from Piaggio Aero Industries that the intent of the MCAI was to inspect the drain holes after painting or cleaning and the repetitive requirement would go beyond what would be necessary to make sure drains remain clear on a recurring basis. We have therefore removed the repetitive inspection requirement.
As earlier stated, we determined that the service bulletin includes affected pages of the PIAGGIO P.180 AVANTI/AVANTI II MAINTENANCE MANUAL (AMM) that should be part of the AD. Therefore, we have also added a requirement to include into your maintenance program specific sections of that maintenance manual that address cleaning procedures, which are included to Piaggio Aero Industries S.p.A. Mandatory SB-80-0220, dated August 8, 2006.
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.
Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed 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 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 60 products of U.S. registry. We also estimate that it would take about 5 work-hours 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 $24,000, or $400 per product.
In addition, we estimate that any necessary follow-on actions would take about 13 work-hours and require parts costing $125, for a cost of $1,165 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 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 November 13, 2007.
(b) None.
(c) This AD applies to P-180 airplanes, serial numbers 1004 through 1112, certificated in any category.
(d) Air Transport Association of America (ATA) Code 53: Fuselage.
(e) The mandatory continuing airworthiness information (MCAI) states:
One P-180 aircraft experienced a jamming of its longitudinal flight control cables. Investigations revealed that its fuselage drain holes were plugged, and water was trapped in the lower fuselage.
As a consequence of plugged drain holes, water can accumulate and freeze when the aircraft reaches and holds altitudes where temperature is below the freezing point. If not corrected this may cause the loss of control of the airplane.
The aim of this Airworthiness Directive (AD) is to check for proper operation, fuselage drain holes and the passenger evaporator drain line and to introduce a temporary revision of the Aircraft Maintenance Manual (AMM).
(f) Unless already done, at the next scheduled maintenance inspection or 1 month after the effective date of this AD, whichever occurs later do the following actions:
(1) Inspect fuselage drain holes and the passenger evaporator drain line for proper operation and do all the necessary corrective actions, following the accomplishment instructions of the Piaggio Aero Industries S.p.A. Mandatory SB-80-0220, dated August 8, 2006.
(2) Incorporate into your maintenance program the following PIAGGIO P.180 AVANTI/AVANTI II MAINTENAMCE MANUAL (AMM) sections, which are included in Piaggio Aero Industries S.p.A. Mandatory SB-80-0220, dated August 8, 2006:
(3) Replace/add the following pages of the AMM that are included in Piaggio Aero Industries S.p.A. Mandatory SB-80-0220, dated August 8, 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 EASA AD No. 2007-0031, dated February 9, 2007; and Piaggio Aero Industries S.p.A. Mandatory SB-80-0220, dated August 8, 2006, for related information.
National Park Service, Interior.
Notice of meeting.
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), of the seventh meeting of the Negotiated Rulemaking Advisory Committee for Dog Management at Golden Gate National Recreation Area (GGNRA).
The Committee will meet on Saturday, October 27, 2007 at GGNRA Headquarters, Bldg. 201, Upper Fort Mason, in San Francisco, CA. The meeting will begin at 9 a.m., and is open to the public.
Although the Committee may modify its agenda during the course of its work, the proposed agenda for this meeting is as follows: introductions, approval of the meeting summary from the previous meeting, update on outstanding issues and activities since the previous full committee meeting, discussion on findings from the Technical Subcommittee, discussion of potential dog management recommendations, update on NEPA process and schedule, identification and discussion of possible next steps for the committee, and public comment.
The Committee provides for a public comment period during the meeting; written comments may also be sent to: Superintendent, GGNRA, Ft. Mason, Bldg. 201, San Francisco, CA 94123, Attn: Negotiated Rulemaking. 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.
To request a sign language interpreter, please call the park TDD line (415) 556-2766, at least a week in advance of the meeting. Please note that federal regulations prohibit pets in public buildings, with the exception of service animals.
Go to the
The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570) to consider developing a special regulation for dogwalking at GGNRA.
Environmental Protection Agency (EPA).
Proposed rule; correction.
The EPA published a proposed rule in the July 11, 2007
Faxed comments on this proposed rule must be received by October 15, 2007.
Submit your faxed comments to: 202-566-9744. Identify comments by Docket ID No. EPA-HQ-OAR-2005-0172.
Dr. David J. McKee, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, Environmental Protection Agency, Mail code C504-06, Research Triangle Park, NC 27711, telephone: 919-541-5288; fax number: 919-541-0237; e-mail address:
In the
• Fax: 202-566-9744.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve under the Clean Air Act a revision to the San Francisco Bay Area portion of the California State Implementation Plan (SIP). This revision consists of transportation conformity criteria and procedures related to interagency consultation and enforceability of certain transportation-related control measures and mitigation measures. We are proposing to approve local procedures to update the transportation conformity criteria and procedures in the applicable SIP.
Any comments on this proposal must arrive by November 13, 2007.
Submit comments, identified by docket number EPA-R09-OAR-2007-0657, by one of the following methods:
1.
2.
3.
Ginger Vagenas, EPA Region IX, (415) 972-3964,
This proposal addresses the San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures, which are together referred to as the San Francisco Bay Area conformity SIP. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
In accordance with the framework procedures for adjusting management measures specified in regulations implementing the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (Gulf FMP) and the Fishery Management Plan for the Shrimp Fishery of the South Atlantic Region (South Atlantic FMP), NMFS proposes to consolidate and make modifications to the Bycatch Reduction Device Testing Manuals (Manual) for the Gulf of Mexico and the South Atlantic regions. This proposed
Comments must be received no later than 4:30 p.m., eastern time, on November 13, 2007.
You may submit comments, identified by 0648-AU59, by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
• Fax: 727-824-5308, Attn: Steve Branstetter.
• Mail: Steve Branstetter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Copies of the proposed regulatory amendment, which includes an Environmental Assessment, an Initial Regulatory Flexibility Analysis (IRFA), a Regulatory Impact Review (RIR), and a Social Impact Assessment/Fishery Impact Statement, may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL, 33607; phone: 813-348-1630; fax: 813-348-1711; email:
Copies of the proposed consolidated and revised Bycatch Reduction Device Testing Manual and the associated IRFA, RIR, and Social Impact Assessment/Fishery Impact Statement are available from the Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 727-824-5305; fax: 727-824-5308.
Comments regarding the approved collection-of-information requirements contained in this rule should be submitted in writing to Jason Rueter at the Southeast Regional Office address (above) and to David Rostker, Office of Management and Budget (OMB), by e-mail at
Steve Branstetter, telephone: 727-824-5305, fax: 727-824-5308, e-mail:
The fisheries for shrimp in the exclusive economic zone (EEZ) of the Gulf of Mexico and the South Atlantic are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and regulations at 50 CFR part 622. The regulations implement the Gulf FMP prepared by the Gulf of Mexico Fishery Management Council (GMFMC) and the South Atlantic FMP prepared by the South Atlantic Fishery Management Council (SAFMC).
Regulations implementing Amendment 9 to the Gulf FMP were published April 14, 1998 (63 FR 18139). The final rule established a requirement, with limited exceptions, for the use of certified BRDs in shrimp trawls towed in the Gulf of Mexico EEZ shoreward of the 100-fm (183-m) depth contour west of 85° 30′ W. longitude (western Gulf), the approximate longitude of Cape San Blas, FL. Regulations implementing Amendment 9 also required NMFS to develop a Manual for the Gulf of Mexico outlining testing procedure for examining the bycatch reduction performance of additional BRD designs. BRDs tested under such a procedure and determined to reduce bycatch mortality of juvenile red snapper by a minimum of 44 percent from the average level of mortality on these age-0 and age-1 groups during the years 1984-1989 would be certified for use in the western Gulf shrimp trawl fishery. A final rule implementing the requirements for this testing procedure was published and became effective July 13, 1999 (64 FR 37690), except for the collection-of-information requirements which became effective September 29, 1999 (64 FR 52427).
NMFS had already published similar regulations (62 FR 18536, April 16, 1997), to implement Amendment 2 to the South Atlantic shrimp FMP, requiring the use of BRDs in the South Atlantic penaeid shrimp fishery. Amendment 2 established a bycatch reduction certification criterion based on 40-percent reductions in the number of Spanish mackerel and weakfish. The final rule implementing Amendment 2 also established a Manual for the South Atlantic shrimp fishery.
To better address the requirements of national standard 9 of the Magnuson-Stevens Act, regulations implementing Amendment 10 to the Gulf FMP (69 FR 1538, January 9, 2004) required BRDs in shrimp trawls fished in the EEZ east of 85°30′ W. longitude (eastern Gulf). To be certified for use in the EEZ of the eastern Gulf, a BRD has to reduce finfish bycatch by at least 30 percent, by weight. NMFS established this new criterion because juvenile red snapper are not common in the eastern Gulf. Therefore, evaluating the effectiveness of a BRD in the eastern Gulf, under a red snapper criterion, would not be feasible. A general finfish reduction, addressing national standard 9, was the more appropriate measure to establish for this region.
The final rule implementing Amendment 6 the South Atlantic FMP (70 FR 73383, December 12, 2005) transferred authority to the NMFS Southeast Regional Administrator (RA) to modify the SAFMC's Manual, as needed, after consultation with the SAFMC. The final rule implementing Amendment 6 also modified the South Atlantic BRD certification criterion to match the eastern Gulf criterion of a 30-percent finfish reduction, and expanded the BRD requirement to include the rock shrimp fishery.
In accordance with the BRD framework procedures of regulations implementing the Gulf FMP, the proposed rule would modify the existing BRD certification criterion for the western Gulf to be consistent with the existing criterion for the eastern gulf and the South Atlantic—a 30-percent reduction in total finfish catch by weight. The existing criterion, established in Amendment 9, is based on a 1995 stock assessment model no longer applicable to the revised red snapper rebuilding target. The 1995 assessment recommended a 50-percent reduction in fishing mortality on age 0 and age 1 red snapper from the average mortalities during the 1984 to 1989 period. The model estimated a fishing mortality rate for the 1984 to 1989 period at 2.06. Recognizing a 10-percent reduction in effort had occurred in the shrimp fishery since 1989, NMFS established a target for a 44-percent reduction from BRDs, which achieved the goal of reducing fishing mortality to approximately 1.03. The rationale for this action assumed that such reductions, beginning in 1997, would meet the existing goal of a 20-percent spawning potential ratio for red snapper by 2019.
This approach was valid based on the modeling techniques used for red snapper at the time; however, recent stock assessments used different models, and the rebuilding target for red snapper has changed. For example, with changes to the red snapper stock and to the red snapper and shrimp fisheries, in combination with refined assessment techniques, the 2005 red snapper stock assessment estimated fishing mortality on age 0 and age 1 red snapper at 0.74 for the 1984-1989 time period. This does not mean the 1995 assessment overestimated fishing mortality, rather that the 2005 assessment utilized updated information which revised estimates of natural mortality (M). In running the models with that revised estimate of M, other parameters, including F, also changed. The 2005 assessment went through a rigorous SEDAR/peer review process. The fishing mortality rate for juvenile red snapper attributable to the shrimp fishery still needs substantial reduction to rebuild the red snapper stock by the new 2032 target; however, the existing BRD certification criterion of a 44-percent reduction in fishing mortality rate to a level of 1.03 is no longer appropriate.
Although the 1995 assessment model could still be used, with a change in scaling, to develop a revised BRD reduction criterion based on a reduction in fishing mortality, there are still problems with using a mortality rate target as the criterion. The annual fishing mortality rates for juvenile age 0 and age 1 red snapper are dependent on seasonal recruitment and the quantity of shrimp fishing effort taking juvenile red snapper. These variables, in turn, affect the ability of a given BRD to reduce annual fishing mortality to a specific level. Thus, the overall goal of reducing the annual juvenile red snapper mortality rate in the shrimp fishery could be achieved from a high reduction of red snapper by BRDs, or by a lesser reduction of red snapper by BRDs in combination with an overall reduction in fishing effort. Under the current certification criterion, based on the mortality rate for one year compared to previous years, it is not possible to independently distinguish the contribution of the BRD from the contribution of overall shrimp effort reductions between the two time periods.
A more appropriate measure of the efficacy of a BRD to reduce bycatch is to evaluate the reductions in catch or catch-per-unit-effort (CPUE) of a species or species group on a real-time basis. Doing so isolates the contribution by the BRD and removes the interactions of total shrimping effort and annual fluctuations in recruitment. The catch rate of a net with a BRD can be directly compared to the catch rate of a net without a BRD, to give reduction levels at any given time. Fishing mortality reductions can then be calculated based on the documented total effort by the fleet and the estimates of recruitment for any given time frame. This is a more appropriate approach than attempting to apply mortality rate values for a specific year against a previous benchmark value, given the fluctuations in recruitment, effort, and CPUE values which affect estimates of annual mortality rates attributable to the shrimp fishery.
In addition, because of the existing statistical procedures prescribed in association with the bycatch reduction criterion, it is difficult to certify new BRDs. Only two BRD types have been certified since 1998 for use in the western Gulf. New BRD designs need to be available to shrimp fishermen to better reduce bycatch of red snapper and achieve recovery goals of this overfished stock, to better reduce overall finfish bycatch to meet the requirements of national standard 9, and to improve shrimp retention for a more efficient fishery under current economic conditions.
Several potentially effective BRD designs could not meet the very specific and rigorous mortality-based criterion established for the western Gulf. However, these experimental BRD designs have been demonstrated to achieve substantial levels of overall finfish reduction, and a moderate and consistent level of red snapper reduction, exceeding the red snapper reduction being achieved by the most commonly used configuration of the fisheye BRD. In addition, these BRDs are similar to the fisheye BRD in terms of overall shrimp retention.
A change in the bycatch reduction criterion west of Cape San Blas, FL, from a reduction in fishing mortality of red snapper to a reduction in finfish catch would increase the opportunity to certify a greater variety of BRDs for use in the fishery, provide a uniform bycatch reduction criterion and list of certified BRDs for the Gulf of Mexico and the South Atlantic regions, and improve the overall reduction in juvenile red snapper bycatch mortality. BRDs may have different capabilities under different fishing conditions, and having a wider variety of BRDs for use in the fishery would allow fishermen to choose the most effective BRD for the specific local fishing conditions.
BRD testing is conducted by comparing the differences in the catch and bycatch of two nets that are towed simultaneously by a single vessel. One net (control net) is a standard rigged shrimp trawl without a BRD, and one net (experimental net) is identically configured, except it contains the experimental BRD. Assuming the two nets have equal or similar fishing efficiencies, the differences in catch and bycatch between the two nets can be attributed to the inclusion of the experimental BRD in one net. Since the Gulf of Mexico and South Atlantic Manuals have been in effect, several experimental BRDs have been tested for certification, but none have been certified. Two specific issues appear to be impeding the successful testing and eventual certification of experimental BRDs.
To be certified by the RA, the BRD candidate must demonstrate an observed reduction rate meeting the bycatch reduction criterion with some degree of statistical certainty. Currently, a modified Student t-test, a standard statistical approach, is used to evaluate the data collected during an experimental BRD evaluation. The criterion for the western Gulf requires there be no more than a 5-percent probability the true reduction rate is less than one standard deviation from the observed mean reduction rate. The magnitude of any standard deviation of a sample is dependent on the data set in question, and the analysis is based on the assumption the individual data points reflect a consistent result among sampling trials during a test. In the case of evaluating a BRD candidate in the marine environment, where organisms in the environment are not randomly distributed, catch rates can be highly variable among successive trawl tows or even between nets during a single tow. This variability increases the standard deviation, and this increase is exacerbated by the small minimum sample size required by the Manual, 30 comparative tows. A sample size of 30 is a recognized minimum standard for conducting a Student t-test, but this standard assumes the data being analyzed have relatively similar values, which as noted, is not often true in the marine environment. However, this sample size was considered necessary to minimize the cost and effort involved in conducting an experimental BRD test.
The variability among data points and the resulting uncertainty regarding the observed sample mean can be reduced
A second and equally critical issue for the initial development of experimental BRDs involves the field sampling procedures prescribed in the Manuals. These rigorous procedures were established with the intent of reducing the inherent variability and uncertainty in the data stemming from a small, 30-tow sample size. Several field tests were not completed successfully (e.g., 30 successful comparative tows could not be completed) because of a failure to meet one or more of the procedural requirements set forth in the Manuals. However, not being able to complete a field test on potentially effective BRDs because of logistical constraints has substantial negative consequences for conservation. Further development of particularly productive concepts may cease, and BRD efficiency might never rise above the current level. This discourages innovative developments to improve BRDs.
These issues were identified at a 1999 shrimp fishery stakeholder's workshop sponsored by the Gulf and South Atlantic Fisheries Foundation, Inc. Recommendations stemming from the workshop were made available to the GMFMC and SAFMC for their consideration. Based on this information as well as additional public input regarding the existing bycatch Manuals, the GMFMC and SAFMC requested that NMFS develop alternative procedures to address and alleviate these impediments to testing and certifying new BRD candidates, while maintaining the statistical confidence BRDs will meet the established bycatch reduction criterion and achieve bycatch reduction goals.
NMFS is proposing to consolidate and make revisions to the Manuals for the Gulf of Mexico and the South Atlantic region. The new, combined BRD Testing Manual implemented under this proposed rule would establish alternative statistical procedures and field sampling procedures. The new statistical procedures would address the issue of statistical uncertainty due to limited sample size when evaluating the effectiveness of experimental BRD designs. Additionally, the proposed rule would modify the Manual to incorporate additional flexibility in the field sampling procedures. Coupled with the proposed modification to the statistical approach, alternative sampling procedures provide flexibility to better meet the logistical constraints of field sampling while maintaining an acceptable level of statistical precision and accuracy.
According to the current Manuals, if the fishing gear used at the start of the test incurs damage and requires replacing, then the certification test of a BRD candidate must begin anew. Under actual field conditions, damage to fishing gear often occurs before the completion of 30 tows. Even if 30 consecutive tows are completed during a test without incident, the data represent results collected aboard a single vessel using only one trawl configuration in a limited area and during a specific time frame. Results from such a test might not be applicable to other vessels fishing at other times of the year, in other areas, or using other shrimp trawl configurations.
The proposed rule would modify the procedure to allow the compilation of results from a series of tests to meet the 30-tow minimum sample size for a complete BRD test. This alternative would eliminate the need to reinitiate tests after a gear failure. Under the proposed modifications, should gear failure occur, the applicant would replace the damaged gear, conduct “tuning” tows (see Gear Tuning below) to determine the new gear did not affect the fishing efficiency between the two nets, and then continue the test. Minor repairs to the gear (e.g., sewing holes in the webbing; replacing a broken tickler chain with a new one of the same configuration) would not be considered a gear change. Additionally, under this proposed procedure, it would be possible to conduct the test over a longer period, aboard different vessels, using different fishing gear configurations (with the same BRD design), or while fishing in different areas. Should the data collected in this manner demonstrate the BRD meets the bycatch reduction criterion, there is a greater likelihood the BRD would be effective under a broader array of actual commercial fishing conditions.
Currently, the sampling procedures require the selection of a fixed tow time before beginning a test. Each tow may not deviate more than 10 percent from the selected tow time. The fishing efficiency of a net changes (decreases) during a tow as the catch in the net increases. The fixed-tow time requirement was intended to reduce that source of variability in the data set, thus reducing the resulting uncertainty associated with the sample mean reduction rate.
However, because of the non-random and patchy distribution and abundance of organisms in the marine environment, a decrease or increase in the tow time may be necessary during a specific BRD test. For example, the total catch taken during a tow may be greater than anticipated. If so, it may not be possible to keep the catch from each net separated for sampling, thus precluding a successful sample of the catch from a specific net. Under such conditions, shorter tow times would produce manageable quantities of catch for sampling. Conversely, catches of shrimp may be lower than anticipated, and the vessel captain may want to increase the tow time. In either case, under the current requirements, the test would have to be aborted and reinitiated if the tow time were changed in increments greater than 10 percent of the original tow time.
This proposed rule would allow the tow time to be changed after the initiation of a test. The applicant would still be required to propose a preferred tow time in the operations plan submitted to the RA as part of the application for a Letter of Authorization (LOA). However, the applicant would be allowed to make reasonable adjustments to the tow times during a given test to adapt to local fishing conditions and successfully complete the test.
Because the fishing efficiency of a trawl will change depending on the amount of catch in the net, and the efficiency of the experimental BRD similarly may be affected by the amount of catch in the net, excessive differences in tow times for segments of a complete 30-tow test sample could introduce a bias in the overall results. Therefore, any tow time changes would need to be described and justified in a report submitted to the RA at the conclusion of the test. The RA would have to approve the changes before the data would be evaluated for certification. The RA would consult with scientific and technical staff, including the SEFSC, regarding the acceptability of
As noted in the “Background” section, the basic assumption in assessing the bycatch reduction efficiency of the BRD candidate during paired-net tests is the BRD candidate in the experimental net represents the only factor causing a difference in catch from the control net. Therefore, prior to beginning a test series, the nets to be used in the tests must be calibrated (tuned) to minimize, to the extent practicable, any differences in catch efficiency, or “bias”. Nets would need to be tuned again after any gear modification or change.
Even so, some efficiency bias may remain between nets, or biases may develop during the test. To address the issue of potential biases in fishing efficiency between nets, the current procedures require rotation of the functioning experimental BRD between the port and starboard nets every four to six tows (Gulf of Mexico) or daily (South Atlantic). The intent of this requirement was to negate any remaining bias by introducing that bias into both the control and experimental data on a regular basis, thus reducing the uncertainty associated with the resulting sample mean reduction rate.
To move a complex BRD candidate integrated into the structure of the trawl (e.g., a soft turtle excluding device) may require moving large sections of the net, or even the entire net, on each side of the vessel. This would require loading the trawl doors onboard, disconnecting, moving and re-connecting the nets, and re-deploying the doors and nets overboard. This activity can take several hours to complete. Not only does this increase non-fishing time for the commercial vessel, it increases the amount of time required to complete a BRD test. The need to load and handle the heavy trawl doors and other fishing equipment on a frequent basis increases concerns about vessel crew safety. All of these issues can be alleviated by allowing greater flexibility in the establishment of a rotational schedule best meeting the needs of the specific proposed test.
This proposed rule would remove the static requirement to rotate the BRD every few tows, and allow the applicant to propose, as part of the application for a LOA from the RA, a reasonable gear rotation schedule to accommodate the complexity of the gear being tested. The proposed rotational schedule would still need to ensure equal numbers of tows are conducted with the BRD candidate in both the port and starboard nets. Because the applicant would be monitoring the catch rates in each net after each tow, if a substantial bias develops, the applicant could take action to re-tune the gear or increase the rotational schedule as needed. The applicant's proposed rotational schedule would have to be approved by the RA before the LOA would be issued. If the rotational schedule is changed during the test, the applicant would need to provide a rationale for the action in the final report submitting the data for certification. The RA would consult with scientific and technical staff regarding the acceptability of any changes to the rotational schedule prior to making a final determination regarding the acceptability of the data.
A try net is a separate, small net pulled for brief periods by a shrimp trawler during an extended trawling effort to test for shrimp concentrations or determine fishing conditions. In the case of vessels fishing four nets (quad-rigged), the nets being used to evaluate the experimental BRD are positioned beyond the influence of the try net, thus the use of a try net on a quad-rigged vessel is allowed under the current procedures. However, on a vessel pulling only two nets (twin-rigged) the try net is fishing in front of the main net on the same side of the vessel. In that case, the try net is removing or diverting some catch before the catch could enter the main net, and introducing bias.
To avoid that bias, the current requirements in the Gulf of Mexico prohibit the use of a try net during BRD tests conducted aboard twin-rigged vessels. Nevertheless, the use of a try net is an integral part of normal shrimping activities, ensuring the vessel is fishing on commercial quantities of shrimp during each extended tow. Because BRD candidate tests are intended to be conducted aboard actively fishing commercial vessels, even if a state government, academic institution, or other entity is the applicant of record, the quantity of shrimp and incidental catch should reflect real fishing conditions. Use of a try net is necessary to ensure the catch levels reflect those expected during normal commercial shrimping operations.
The proposed rule would modify the procedures in the Manual to allow the use of a try net during BRD tests aboard twin-rigged vessels with the try net fishing directly in front of one of the main test nets. To minimize and negate the potential bias, NMFS is proposing a condition requiring the fishing time for the try net to remain a consistent percentage of the total tow time for each tow throughout the course of the test. This condition would expose both the control and experimental nets (as they are rotated) to equivalent effects introduced by the try net. This requirement should adequately address the shrimp fishermen's need to use a try net as part of the commercial operation while negating any potential bias introduced from the use of the try net.
The current procedures require the collection of information on a variety of species taken as catch and bycatch in shrimp trawls. The current SAFMC Manual requires the collection of information on 25 species or species groups of finfishes. However, the certification criterion is a 30-percent reduction, by weight, in total finfish, in aggregate, not individual species. Therefore, the species specific data requirement is outdated, and while informative, is not needed to determine whether a BRD meets the existing certification criterion. For the western Gulf, currently a BRD is certified only on its ability to reduce the bycatch mortality of juvenile red snapper. However, this proposed rule would revise the western Gulf criterion to also be a 30-percent reduction in total finfish, and the specific requirements to sample red snapper would no longer be appropriate.
The proposed rule would reduce mandatory data collection requirements for tests conducted to certify a BRD. Mandatory data collection during a certification test would be limited to recording the total catch of each net, the total catch of commercial shrimp in each net, and the total catch (or total catch in a pre-determined sample) of all finfish species in aggregate. For tests conducted in the western Gulf, applicants would be encouraged to record the total catch of red snapper in each net, but these data would not be used in making a decision to certify a BRD. Similarly, for all areas, data collection for any other specific portions of the catch (i.e., specific finfish species) is encouraged but voluntary, as this information is not required for the certification of the BRD candidate.
The current certification approach was developed from the procedures used in the Congressionally-mandated BRD research program of the early 1990s. From a statistical standpoint, the goal is to develop a procedure that has zero chance of passing a device with a true reduction less than the target value, and zero chance of failing a device with
The concept of Type II errors is of general concern to the statistical community, and has prompted substantial statistical research and scientific publications on the properties of Type II error. The probability of a Type II error of a hypothesis test is known as the power of the test. Power analyses of the existing BRD data indicated, because of the inherent variability, certification of devices was unlikely unless the BRD demonstrated a 60- to 70-percent sample mean reduction rate. This was not the intent when NMFS established certification criteria of substantially lesser values.
It is preferable to be able to evaluate an experimental BRD via probability statements of the form “There is at least 'X' probability the true reduction meets the target.” SEFSC scientists have recommended the use of a statistical standard, based on a Bayesian approach, as a more applicable method than the current use of the “classical” Student-t test, or frequentist approach. The Bayesian approach is more instructive about how competing risks (Type I and Type II errors) can be controlled, given the new information now available regarding the statistical power of the data and approaches. Additionally, the Bayesian approach allows for the development and evaluation of the capabilities of an experimental BRD in terms of probability statements.
The proposed rule would replace the current “classical” statistical approach with a Bayesian approach. Under a Bayesian approach, two probability statements would address the existing null hypothesis regarding the certification of a BRD. These probability statements would be: (1) The probability the true reduction meets the target is at least 'A'; and (2) The probability the true reduction is less than some minimum threshold is not more than 'B'. The probability statements are based on observed data sets.
To be certified, the data set for a BRD candidate would need to demonstrate a best point estimate (sample mean) meeting the certification criterion. Additionally, the BRD candidate would have to satisfy both probability statements above. The statistical properties of the data being collected dictate a 50-percent probability value for 'A'. For any BRD, even if it were tested indefinitely under identical conditions, there would be an ever-narrowing probability distribution on either side of the mean observed reduction rate. Nevertheless, half the probability distribution would include values less than the mean, and half of the distribution would include values greater than the mean. Therefore, to certify BRDs capable of meeting the target, NMFS has determined the first probability statement can be adequately expressed as: “There is at least a 50-percent probability the true reduction meets the bycatch reduction criterion.” This would be similar to other NMFS actions that have at least a 50-percent probability of achieving a stock rebuilding target.
There will always be some risk the data set generated for a specific device will result in a sample mean reduction rate meeting the certification criterion, when the device's true reduction rate is less than the certification criterion. Therefore, selecting a value for a minimum threshold and a value for 'B' is a greater focus to managing the risk of accepting a BRD not meeting the criterion. To address this issue, it is necessary to establish a minimum threshold level, below the target criterion, which is completely unacceptable, and set 'B' accordingly, such that there is only a low risk of accepting a BRD because of chance variation in the available data.
Based on the statistical results generated from data sets certifying the BRDs currently in use in the South Atlantic and Gulf of Mexico shrimp fisheries, SEFSC scientists have determined the second probability statement can be adequately expressed as: “There is no more than a 10-percent probability the reduction rate of the BRD candidate is more than 5 percent less than the bycatch reduction criterion.” In other words, for the current 30-percent finfish reduction target, there is no more than a 10-percent probability the true reduction rate of the BRD candidate is less than 25 percent.
The proposed change would increase the opportunity to certify a greater variety of BRDs for use in the fishery, while maintaining a statistical confidence in regard to the efficiency of the BRD. BRDs may have different capabilities under different fishing conditions, and having a wider variety of BRDs for use in the fishery would allow fishermen to choose the most effective BRD for the specific local fishing conditions. This would enhance compliance with national standard 9 of the Magnuson-Stevens Act, and in the western Gulf of Mexico, potentially accelerate the rebuilding efforts for the overfished red snapper resource in the Gulf of Mexico.
In addition to revising the statistical evaluation for BRD certification, NMFS proposes to create a “provisional certification” category for experimental BRDs. A provisional certification would apply to an experimental BRD not quite meeting the criteria for certification, but deemed likely to meet the criteria with further testing. To be provisionally certified, statistical analyses of the test results for an experimental BRD must demonstrate there is at least a 50-percent probability the true reduction rate of the BRD candidate is no more than 5 percent less than the bycatch reduction criterion.
In other words, the BRD candidate must demonstrate a best point estimate (sample mean) within 5 percent of the certification criterion.
A provisional certification of a BRD would be effective for 2 years from the date of publication in the
The new BRD certification criterion to be established with this proposed rule, along with the revisions to the Manual, especially the addition of a “provisional certification,” would allow new and more effective BRDs to be certified for use in the fishery. There would be no change to the status of the existing certification of the Jones Davis BRD in the southeast shrimp fishery. The original data used to certify that BRD indicate it achieves a 58-percent reduction in total finfish bycatch; there is a 100-percent probability the true reduction rate meets the certification criterion.
The proposed rule would certify the Modified Jones Davis BRD for use by the shrimp fishery throughout EEZ of the Gulf and South Atlantic. This device has been demonstrated to provide a 33-percent reduction in total finfish
The proposed rule would also provisionally certify the extended funnel BRD for use in the western Gulf. The extended funnel BRD is currently certified for use in the eastern Gulf and South Atlantic. The data set from the 1990's certifying the extended funnel BRD indicated it reduced total finfish by 30 to 35 percent. Newer information collected during 2001 through 2003 in the Gulf indicates the extended funnel BRD is reducing finfish by only about 27 percent. Therefore, the extended funnel BRD would not meet the proposed new certification criterion. However, consistent with the proposed criterion for provisional certification, there is a 74-percent probability the true reduction rate of the BRD is at least 25 percent. Therefore, this proposed rule would change the status of the extended funnel BRD in the Gulf to a provisional certification which would remain effective for two years from the date of publication of any final rule to implement this regulatory amendment. NMFS anticipates additional work on the extended funnel BRD would improve its performance, and allow it to meet the certification criterion. No new information is available regarding the efficacy of the extended funnel BRD in the South Atlantic. The shrimp fishery in the South Atlantic tends to operate in shallower water and has a different species composition to its bycatch. The new information on the extended funnel BRD was all collected in the Gulf of Mexico; there are no new data collected from the South Atlantic fishery to indicate the BRDs are not meeting the bycatch reduction targets. Therefore, the BRD will remain certified in the South Atlantic based on prior determinations the BRD meets the criterion in that part of the fishery.
This proposed rule would also provisionally certify one new design, the composite panel BRD, for use in the Gulf and South Atlantic shrimp fisheries. This BRD design has only been tested in the Gulf, but with a provisional certification, this BRD can be more extensively evaluated for its use in the South Atlantic. The mean sample reduction rate is 25.1 percent. There is a 52- percent probability the true reduction rate of this BRD design is at least 25 percent. Therefore, NMFS proposes to provisionally certify this BRD design. This provisional certification would remain effective for two years from the date of publication of any final rule to implement this regulatory amendment; NMFS anticipates this would allow sufficient time to further test this design in both the Gulf and South Atlantic fisheries.
The fisheye BRD was one of two BRD designs originally certified under the existing criterion for use in the western Gulf. Because of its simplistic design and low cost, it became the industry standard. The most common configuration and placement in the trawl is greater than 10.5 ft (3.2 m) from the trawl's cod end tie-off. According to NMFS' SEFSC estimates, the fisheye BRD in this configuration is achieving between 11- and 25-percent reductions in fishing mortality on juvenile red snapper and a 14- to 23-percent reduction in finfish bycatch by weight. Thus, it does not meet the current red snapper morality target or the proposed 30-percent finfish reduction criterion. Whether the criterion is changed or not, NMFS would not be able to maintain the certification of the industry-standard fisheye BRD placed 10.5 ft (3.2 m) forward because it does not meet the existing red snapper criterion or the proposed 30-percent finfish reduction criterion. However, placed in other areas of the cod end, this type of BRD is more effective, and NMFS is developing subsequent rulemaking to modify the allowable placement of the fisheye BRD in trawl nets. The analysis in this proposed rule discusses indirect impacts arising from the change in the certification criterion, and its potential impact on the future certification and possible decertification or revision to allowable BRDs. For example, it appears at this time that the fisheye BRD would be restricted in its allowable placement in the shrimp trawl net. NMFS is developing separate rulemaking to address this additional change, and the potential direct economic impacts associated with Gulf shrimp vessels having to change or modify the current placement of BRDs in their shrimp trawl nets will be fully analyzed in the subsequent rule.
Similarly, it appears the efficiency of the expanded mesh BRD, currently certified for use in the eastern Gulf and South Atlantic, has decreased. During the original tests of the expanded mesh BRD in the mid-1990s, the BRD achieved between 30- and 35-percent reduction in total finfish. Recent tests of the expanded mesh BRD in the Gulf indicate it is only achieving about a 17-percent reduction in total finfish, thus, it does not meet the criteria to be certified or provisionally certified. NMFS may revise the certification status of the expanded mesh BRD in a separate rulemaking.
For all of these BRD designs, the potential of the BRDs has not changed, but it appears fishing behavior, or some other factor in the fleet, has changed. Actions to maximize shrimp retention, without concurrently maintaining fish reductions, have diminished the BRDs' effectiveness to reduce bycatch. There have been numerous technological changes to the overall construction of shrimp trawl gear, such as new turtle excluder devices and longer nets. In addition, there have been changes in fishing practices to help increase shrimp retention, such as faster towing speeds and modified retrieval procedures. The exact reasons for the BRDs' change in efficiency are not known.
The new BRDs would actually improve red snapper bycatch reduction and general finfish reduction relative to what the industry is currently achieving with its use of the forward-placed fisheye BRD because these new BRDs have a better exclusion rate than the industry standard. The forward-placed fisheye BRD reduces fishing mortality on juvenile red snapper by about 11 percent and reduces the biomass of finfish by about 14 percent. The Modified Jones Davis BRD reduces red snapper mortality by approximately 31 percent and reduces finfish by 33 percent. The extended funnel BRD reduces juvenile red snapper mortality by approximately 25 percent and reduces finfish biomass by about 27 percent.
NMFS is now addressing red snapper management through measures proposed in the Joint Amendment 27 to the FMP for the Reef Fish Resources of the Gulf of Mexico and Amendment 14 to the FMP for the Shrimp Fishery of the Gulf of Mexico. NMFS has initiated review of this joint amendment and announced the availability of this joint amendment for public comment on July 26, 2007 (72 FR 41046). Given the current declines in the number of participants and effort expended by the shrimp fishery, it is more practicable to control red snapper mortality in the shrimp fishery through effort controls of that fishery versus the use of BRDs. However, BRDs still play an important role in addressing national standard 9 for total bycatch reduction potential.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I have determined that this proposed rule is consistent with the regulatory amendment proposing these BRD-related revisions, other provisions of the Magnuson-Stevens Act, and other
This proposed rule has been determined to be significant for purposes of Executive Order 12866.
NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see
The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The proposed rule would modify the procedures for field testing BRD candidates for use in the Gulf of Mexico and South Atlantic EEZ commercial shrimp fisheries and would modify the bycatch reduction criterion for certifying BRDs for use in the penaeid shrimp fishery in the Gulf EEZ west of Cape San Blas, FL.
The purpose of this proposed rule is to implement more practical field testing procedures for BRD certification candidates and to establish a realistic bycatch reduction threshold for the Gulf EEZ commercial shrimp fishery.
No duplicative, overlapping or conflicting Federal rules have been identified.
The primary entities that are expected to apply for the BRD certification process are state government, academic, and not-for-profit entities. Independent commercial shrimping operations in either the Gulf or South Atlantic may also be included among applicants. NMFS estimates up to 24 applicants will apply for the BRD certification process during the first year and a smaller number in following years. While the identity of entities that might pursue future BRD testing cannot be determined with any certainty, based on past applicants, BRD testing is expected to be undertaken by NOAA Fisheries Service, the Texas Parks and Wildlife Department, the Florida Department of Environmental Protection, Texas A&M University, the University of Georgia, other institutions, and owners of shrimp vessels in the Gulf.
There are approximately 700 vessels permitted to operate in the South Atlantic EEZ commercial shrimp fishery. The most current assessment of the South Atlantic commercial shrimp fishery covers the period 2000-2002 and encompasses vessels that operated in both state and EEZ waters. While this assessment covered a larger universe of vessels, an average of approximately 1,900 vessels per year, and different economic conditions, it represents the best profile available at this time. Over this period, average gross revenue per vessel ranged from approximately $71,000 to approximately $81,000. The highest gross revenue per vessel from all commercial harvesting activities did not exceed $1.0 million.
For the Gulf EEZ, as of March 26, 2007, a moratorium permit is required to fish for shrimp. Although it is unknown how many eligible applicants will apply for a moratorium permit, 2,666 vessels would qualify for the permit and are assumed to constitute the universe of indirectly affected shrimping vessels.
An evaluation of revenue distribution by vessel size indicates substantial differences in yearly average revenues between large (at least 60 ft (18.3 m) in length) and small vessels in the Gulf EEZ commercial shrimp fishery. For the large vessel group, average annual revenues per vessel in 2004 was approximately $140,000, while the comparable value for small vessels was approximately $27,000. Across all vessels, the average annual gross revenue per vessel was approximately $110,000. Maximum yearly gross revenue reported by a qualifying vessel was approximately $1,046,000.
On average, “small” vessels are also “smaller” in regards to almost all of their physical attributes (e.g. they use smaller crews, fewer and smaller nets, have less engine horsepower and fuel capacity, etc.). Small vessels are also older on average. Larger vessels also tend to be steel-hulled. Fiberglass hulls are most prominent among small vessels, though steel and wood hulls are also common. Nearly two-thirds of large vessels have freezing capabilities while few small vessels have such equipment. Small vessels still rely on ice for refrigeration and storage, though more than one-third of large vessels also rely on ice. Some vessels are so small that they rely on live wells for storage.
An important difference between large and small Gulf EEZ commercial shrimp vessels is with respect to their dependency on the food shrimp fishery. The percentage of revenues arising from food shrimp landings is approximately 81 percent for large vessels, but only approximately 58 percent for small vessels. Thus, on average, large vessels are more dependent than their smaller counterparts on the food shrimp fishery. However, dependency on food shrimp is much more variable within the small vessel sector than the large vessel sector. Many small vessels are quite dependent on food shrimp landings, while others illustrate little if any dependency.
Finally, according to recent projections, on average, both small and large Gulf EEZ commercial shrimp vessels are experiencing significant economic losses, ranging from a -27 percent rate of return in the small vessel sector to a -36 percent rate of return in the large vessel sector (-33 percent on average for the fishery as a whole). Therefore, almost any but the most minor additional financial burden would be expected to generate a significant adverse impact on affected vessels and potentially hasten additional exit from the fishery.
The Small Business Administration (SBA) defines a small organization as any not-for-profit enterprise that is independently owned and operated and not dominant in its field of operation. This definition includes private educational institutions. The SBA also defines a small governmental jurisdiction as the government of cities, counties, towns, townships, villages, school districts, or special districts with a population less than 50,000. Finally, the SBA defines a small business in the commercial fishing activity as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has average annual total receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing).
While the identity of entities that might pursue future BRD testing cannot be determined with any certainty, based on past applicants, BRD testing is expected to be undertaken by NOAA Fisheries Service, the Texas Parks and Wildlife Department, the Florida Department of Environmental Protection, Texas A&M University, the University of Georgia, other institutions, and owners of shrimp vessels in the Gulf. The respective state agencies are extensions of the respective state governments and, as such, clearly exceed the SBA population thresholds for small government entities. Similarly, both Texas A&M University and the University of Georgia are, as public universities, extensions of the respective state government educational systems, with staff being state employees, and, therefore, would similarly be appropriately classified as large entities. Although no private colleges or universities that might apply for the BRD testing process have been identified, as private rather than public educational institutions, while some exceptions may exist, private educational institutions generally are understood to be smaller in terms of
All entities that would qualify for the Gulf EEZ commercial shrimp fishery moratorium permit, 2,666 vessels, would be expected to be indirectly affected by the proposed Gulf bycatch reduction criterion. Given the maximum revenue provided above for Gulf EEZ commercial shrimping operations, all shrimp vessels that have the potential to be indirectly impacted by the proposed change in the Gulf bycatch reduction criterion are determined to be small entities for the purpose of this analysis.
The outcome of “significant economic impact” can be ascertained by examining two issues: disproportionality and profitability.
The disproportionality question is: do the proposed regulations place a substantial number of small entities at a significant competitive disadvantage to large entities? Revision to the Manual would not be expected to result in any direct or indirect adverse economic impacts to any affected entities since the reporting burden per applicant will not increase and the revisions, in and of themselves, will not cause any BRDs to be certified, provisionally certified, or decertified in future actions. Therefore, the issue of disproportionate impacts would not apply to this action.
Similarly, the proposed change to the Gulf EEZ commercial shrimp fishery bycatch reduction criterion would not result in any direct adverse economic impacts on participants in the Gulf EEZ commercial shrimp fishery. However, the change in the bycatch reduction criterion would be expected to generate indirect impacts on vessels in the Gulf EEZ commercial shrimp fishery as a result of future certification, provisional certification, and/or decertification actions. All of these vessels have been determined to be small business entities. Hence, the issue of disproportionality would also not apply to this action.
The proposed certifications and provisional certifications would also impact all vessels in the Gulf EEZ commercial shrimp fishery, as well as vessels in the South Atlantic EEZ commercial shrimp fishery in some cases. As all of these entities were determined to be small entities, the issue of disproportionality would not apply to these proposed actions.
The profitability question is: do the regulations significantly reduce profit for a substantial number of small entities?
The proposed revision of the Manual would not directly affect fishery participation or harvest because it merely establishes procedures under which research and gear development may proceed. The proposed bycatch reduction criterion for the Gulf EEZ commercial shrimp fishery is not expected to result in any direct adverse economic impacts the participants in this fishery because it is an administrative action.
The proposed criterion would, however, be expected to result in decertification of some currently used BRDs/configurations through subsequent regulatory action. This decertification would require the use of alternative certified or provisionally certified BRDs and would result in increased operating costs. Among the BRDs currently in use, the maximum increase in operating costs that would be incurred as a result of future decertification would be the first-year BRD replacement costs, ranging from $2,550 to $4,250 per vessel per year, associated with the Jones-Davis BRD--the most expensive of the remaining certified BRDs. This increase would represent between 2.3 percent and 3.8 percent of an average vessel's annual revenues. Industry-wide, the re-gearing costs for the Gulf EEZ commercial shrimp fishery would be expected to range from approximately $2.8-$10.1 million for all moratorium permit qualifiers, or approximately $2.2-$7.7 million if only active qualifiers elect to obtain moratorium permits. However, these costs would directly accrue only to a subsequent rule and not to the current proposed action.
The proposed criterion would also allow for the Modified Jones-Davis BRD to be certified for use in the Gulf of Mexico and South Atlantic EEZ shrimp fisheries, the extended funnel BRD to be provisionally certified for use in the western Gulf EEZ shrimp fishery, and the composite panel BRD to be provisionally certified for use in the Gulf of Mexico and South Atlantic EEZ shrimp fisheries, as is proposed in this rule. However, these three BRDs are used by few shrimp vessel owners at present, are more costly to purchase, and attain higher levels of shrimp loss on average relative to the predominantly used fisheye BRD. As such, no shrimp vessel owners would be expected to voluntarily switch from their currently used BRDs to these BRDs. As such, no direct impacts would result from their certification or provisional certification. Therefore, this proposed rule would not be expected to result in any direct impact on the profitability of any small business entities in the shrimp fishery or associated industries. However, substantial reductions in annual gross revenues could occur as a result of subsequent BRD decertification associated with future rulemaking. Depending upon the BRD type currently used and the availability of replacements, small vessels could lose from approximately $300 to $4,000, or from less than 1 percent to more than 8 percent of annual gross revenues, while large vessels could experience a small gain of approximately $600 to a loss of $26,000, or a less than 1 percent gain to a greater than 14 percent loss. Even assuming net shop supply is able to meet demand, if all vessels are able to switch to certified BRDs, the range of impacts is only reduced to a maximum projected annual loss of $1,400 (3 percent) for small vessels and $14,000 (8 percent) for large vessels, though this last figure would apply to relatively few vessels, with the majority of large vessels projected to experience a loss of $3,500 to $4,000 (2 percent) reductions in annual gross revenues.
The management measures considered in this proposed rule do not affect the reporting or record-keeping requirements for shrimp vessels. This proposed action, which only modifies the performance standards used in BRD certification, does not require additional records or report preparation.
Two alternatives, the proposed alternative and the status quo, were considered for the action to modify the Manual. The status quo would continue overly restrictive and inflexible testing procedures and would not achieve NMFS' objectives.
Three alternatives, including the status quo, were considered for the action to change the BRD bycatch reduction criterion. Two alternatives contained multiple options, resulting in seven effective alternatives. As previously discussed, changing the criterion is an administrative action and would not simultaneously decertify BRDs currently in use or require immediate replacement. Decertification, with attendant costs, however, could be
The status quo would be expected to result in the decertification of the fisheye BRD for use in the Gulf commercial shrimp fishery, inducing industry-wide replacement costs of approximately $6.0-$10.1 million for all moratorium permit qualifiers, or approximately $4.6-$7.7 million if only active qualifiers elect to obtain moratorium permits. The minimum range of these costs is greater than that of the proposed rule because while the proposed rule could also lead to the decertification of the fisheye BRD via subsequent action, it would allow the use of the cheaper modified Jones-Davis BRD.
The second alternative would continue to base the bycatch reduction target on juvenile red snapper, similar to the status quo, but considered three different minimum thresholds. The two lower thresholds (12 percent and 20 percent) would be expected to allow continued use of the fisheye BRD, which is the most commonly used BRD, resulting in no direct adverse economic impacts and no increased indirect costs. Neither threshold, however, would meet the objective of national standard 9, which requires that bycatch be reduced to the extent practicable. Hence, these lower thresholds would not meet the Magnuson-Stevens Act's requirements. The highest threshold (30 percent) would be expected to result in the same effects as the status quo, resulting in greater indirect adverse economic impacts than the proposed rule.
The third alternative would base the bycatch reduction criterion on all finfish and considered four minimum thresholds, ranging from 10-40 percent. The two lower thresholds (10 percent and 20 percent) would be expected to allow continued use of fisheye BRDs, resulting in no direct adverse economic impacts and increased indirect gear costs. However, neither threshold would meet the Magnuson-Stevens Act requirement of achieving bycatch reduction to the extent practicable. The highest threshold (40 percent) would not be expected to result in any direct adverse economic impacts but would be expected to result in indirect increased gear costs equal to those of the status quo, which are higher than those of the proposed rule. This alternative would also set an excessive standard that few BRD designs could achieve.
This rule contains approved collection-of-information requirements--namely, the BRD certification process, consisting of applications for pre-certification or certification of a new BRD, pre-certification adjusting, the testing itself, the submission of the test results, application for observer position, and references for observers, subject to the Paperwork Reduction Act (PRA). These collection-of-information requirements have been approved by OMB under Control Number 0648-0345. The public reporting burden for this collection of information which includes the application, pre-certification phase, testing, and submission of results, is estimated to average 194 hours per test. The public reporting burden for applying for an observer position will average 1 hour per response, and the burden for obtaining references will average 1 hour per response. The collection consists of an Application Form, Vessel Information Form, Gear Specification Form, TED/BRD Specification Form, Station Sheet Form, Species Characterization Form, Length Frequency Form, and Condition and Fate Form. The average response time for each of these forms is 20 minutes, except for the Species Characterization Form which has a 2.8-hour response time and the Application Form which has a 2.3-hour response time. In addition, 4 hours will be needed to prepare the final report. These burden estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (see
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 PRA unless that collection of information displays a currently valid OMB control number.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.41, paragraph (h) is removed and reserved and paragraph (g) is revised to read as follows:
(g)
(1)
(ii)
(iii)
(iv)
(2)
(i)
(A) A person who wants to conduct pre-certification phase testing must submit an application to the RA, as specified in the “Bycatch Reduction Device Testing Manual.” The “Bycatch Reduction Device Testing Manual”, which is available from the RA, upon request, contains the application forms.
(B) After reviewing the application, the RA will determine whether to issue a letter of authorization (LOA) to conduct pre-certification trials upon the vessel specified in the application. If the RA authorizes pre-certification, the RA's LOA must be on board the vessel during any trip involving the BRD testing.
(ii)
(iii)
(iv)
(3)
(A) Fisheye.
(B) Gulf fisheye.
(C) Jones-Davis.
(D) Modified Jones-Davis.
(E) Expanded mesh.
(F) Extended funnel -South Atlantic EEZ only.
(ii)
(A) Extended funnel- Gulf EEZ only; through the date that is 2 years after the date of publication of the final rule implementing this regulatory amendment.
(B) Composite panel -Gulf EEZ and South Atlantic EEZ; through the date that is 2 years after the date of publication of the final rule implementing this regulatory amendment.
3. In Appendix D to part 622, sections F and G are added to read as follows:
1.
2.
(a)
(b)
(c)
(d)
(e)
(f)
1.
2.
(a)
(b)
(c)
The “Bycatch Reduction Device Testing Manual” is published, excluding the Manual's appendices, as an appendix to this document. See the contact under
This Bycatch Reduction Device Testing Manual (Manual) establishes a standardized process for evaluating the ability of bycatch reduction device (BRD) candidates to meet the established bycatch reduction criterion, and be certified for use in the EEZ by the southeastern shrimp fishery. BRDs are required for use in shrimp trawls fished shoreward of the 100-fathom (183-meter) depth contour in the Gulf of Mexico, and within the EEZ of the South Atlantic region.
Various BRD requirements also exist in state waters in the South Atlantic and off Florida and Texas in the Gulf of Mexico. Persons wishing to conduct BRD candidate evaluations exclusively in state waters do not need to apply to NMFS for authorization to conduct these tests, but should contact the appropriate state officials for authorizations. However, for data collected in such evaluations to be considered by NMFS for certification, the operations plan and data collection procedures must meet the criteria established in this Manual.
Persons interested in evaluating the efficiency of a BRD candidate must apply for, receive, and have on board the vessel during the evaluation, a Letter of Authorization (LOA) from the Regional Administrator (RA). To receive an LOA, the applicant must submit the following documentation to the RA: (1) a completed application form (Appendix A); (2) a brief statement of the purpose and goal of the activity for which the LOA is requested; (3) an operations plan (see Section C below) describing the scope, duration, dates, and location of the test, and methods that will be used to conduct the test; (4) an 8.5- inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD design; (5) an 8.5-inch x 11-inch (21.6-cm x 27.9-cm) diagram drawn to scale of the BRD in the shrimp trawl; (6) a description of how the BRD is supposed to work; (7) a copy of the testing vessel's U.S. Coast Guard documentation or its state registration; and (8) a copy of the testing vessel's Federal commercial shrimp vessel permit.
An applicant requesting an LOA to test an unapproved turtle excluder device (TED) as a BRD (including modifications to a TED that would enhance finfish exclusion) must first apply for and obtain from the RA an experimental TED authorization pursuant to 50 CFR 223.207(e)(2). Applicants should contact the Protected Resources Division of NMFS' Southeast Regional Office for further information. The LOA applicant must include a copy of that authorization with the application.
Incomplete applications will be returned to the applicant along with a letter from the RA indicating what actions the applicant may take to make the application complete.
There is no cost to the applicant for the RA's administrative expenses such as reviewing applications, issuing LOAs, evaluating test results, or certifying BRDs. However, all other costs associated with the actual testing activities are the responsibility of the applicant, or any associated sponsor. If an application for an LOA is denied, the RA will provide a letter of explanation to the applicant, together with relevant recommendations to address the deficiencies that resulted in the denial.
Issuance of an LOA to test a BRD candidate in the South Atlantic or Gulf of Mexico allows the applicant to remove or disable the existing certified BRD in one outboard net (to create a control net), and to place the BRD candidate in another outboard net in lieu of a certified BRD (to create an experimental net). All other trawls under tow during the test must have a certified BRD, unless these nets are specifically exempted in the LOA. All trawls under tow during the test must have an approved TED unless operating under an authorization issued pursuant to 50 CFR 223.207(e)(2), whereby the test is being conducted on an experimental TED. The LOA, and experimental TED authorization if applicable, must be on board the vessel while the test is being conducted. The term of the LOA will be 60 days; should circumstances require a longer test period, the applicant may apply to the RA for a 60-day extension.
An operations plan should be submitted with the application describing a method to compare the catches of shrimp and fish in a control net (net without a BRD candidate installed) to the catches of the same species in an experimental net (a net configured identically to the control net but also equipped with the BRD candidate).
The applicant may choose to conduct a pre-certification test of a prototype BRD candidate. A pre-certification test would be conducted when the intent is to assess the preliminary effectiveness of a prototype BRD candidate under field conditions, and to make modifications to the prototype BRD candidate during the field test. For pre-certification testing, the operations plan must include only a description of the scope, duration, dates, and location of the test, along with a description of methods that will be used to conduct the test. No observer is required for a pre-certification test, but the applicant may choose to use an observer to maintain a written record of the test. The applicant will maintain a written record for both the control and experimental net during each tow. Mandatory data collection is limited to the weight of the shrimp catch and the weight of the total finfish catch in each test net during each tow. These data must be submitted to NMFS at the conclusion of the test. Although not required, the applicant may wish to incorporate some or all the certification test requirements listed below.
For a BRD candidate to be considered for certification, the operations plan must be more detailed and address the following topics:
(1) The primary assumption in assessing the bycatch reduction efficiency of the BRD candidate during paired net tests is that the inclusion of the BRD candidate in the experimental net is the only factor causing a difference in catch from the control net. Therefore, the nets to be used in the tests must be calibrated (tuned) to minimize, to the extent practicable, any net/side bias in catch efficiency prior to beginning a test series, and tuned again after any gear modification or change. Additional information on tuning shrimp trawls to minimize bias is available from the Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone (601) 762 4591.
(2) A standard tow time for a proposed evaluation should be defined. Tow times must be representative of the tow times used by commercial shrimp trawlers. The applicant should indicate what alternatives will be considered should the proposed tow time need adjustment once the test begins.
(3) A minimum sample size of 30 successful tows using a specific BRD candidate design is required for the statistical analysis described in Section F. No alterations of the BRD candidate design are allowed during a specific test series. If the BRD candidate design is altered, a new test series must be started. If a gear change (i.e., changing nets, doors, or rigging) is required, the nets should be tuned again before proceeding with further tests to complete the 30-tow series. Minor repairs to the gear (e.g., sewing holes in the webbing; replacing a broken tickler chain with a new one of the same configuration) are not considered a gear change.
(4) Biases that might result from the use of a try net should be reduced to the extent practicable. Total fishing times for a try net must be a consistent percentage of the total tow time during each tow made in the test.
(5) To incorporate any net/side bias that remains after the tuning tows (e.g., the effect of a try net), or to accommodate for bias that develops between the control and experimental nets during the test, the operations plan should outline a timetable ensuring that an equal number of successful tows are made with the BRD candidate employed in both the port and starboard nets.
(6) Mandatory data to be collected during a test includes: (1) detailed gear specifications as set forth in Appendices B and C, and (2) pertinent information concerning the location, duration and catch
(7) Following each paired tow, the catches from the control and experimental nets must be examined separately. This requires that the catch from each net be kept separate from each other, as well as from the catch taken in other nets fished during that tow. Mandatory data collections include recording the weight of the total catch of each test net (control and experimental nets), the catch of shrimp (i.e., brown, white, pink, rock, or other shrimp by species) in each test net, and the catch of total finfish in aggregate in each test net.
(8) When recording the detailed information on the species found in the catch, if the catch in a net does not fill one standard 1-bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket (ca. 70 lb) (31.8 kg), but the tow is otherwise considered successful, data must be collected on the entire catch of the net, and recorded as a “select” sample (see Appendices D and F), indicating that the values represent the total catch of the particular net. If the catch in a net exceeds 70 lb (31.8 kg), a well-mixed sample consisting of one standard 1-bushel [ca. 10 gallon] (30 liters) polyethylene shrimp basket must be taken from the total catch of the net. The total weight of the sample must be recorded, as well as the weights (and numbers as applicable) of the various species or species groups found within that sample. These sample values can then be extrapolated to estimate the quantity of those species or species groups found in the total catch of the particular net.
(9) Although not a criterion for certification, applicants testing BRD candidates are encouraged to collect additional information that may be pertinent to addressing bycatch issues in their respective regions. For example, In the western Gulf of Mexico applicants are especially encouraged to collect information on red snapper. If the applicant chooses to collect these data, the total (“select”) catch of the target species from each test net (not just from the sample) should be recorded along with lengths for as many as individuals per net per tow as set forth in Appendices E and F. Additional information in regard to the catch can be recorded on forms such as Appendix G.
The operations plan should address what the applicant will do should it become necessary to deviate from the primary procedures outlined in the operations plan. The plan should describe in detail what will be done to continue the test in a reasonable manner that is consistent with the primary procedures. For example, it may become necessary to alter the pre-selected tow time to adapt to local fishing conditions to successfully complete the test. Prior to issuing a LOA, the RA may consult with evaluation personnel to review the acceptability of these proposed alterations.
It is the responsibility of the applicant to ensure that a qualified observer (see Appendix H) is on board the vessel during the certification tests. A list of qualified observers is available from the RA. Observers may include employees or individuals acting on behalf of NMFS, state fishery management agencies, universities, or private industry who meet the minimum requirements outlined in Appendix H. Any change in information or testing circumstances, such as replacement of the observer, must be reported to the RA within 30 days. Under 50 CFR 600.746, when any fishing vessel is required to carry an observer as part of a mandatory observer program under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801,
A report on the BRD candidate test results must be submitted by the applicant or associated sponsor before the RA will consider the BRD for certification. The report must contain a comprehensive description of the tests, copies of all completed data forms used during the tests, and photographs, drawings, and similar material describing the BRD. The captain, vessel owner, or the applicant must sign and submit the cover form (Appendix I). The report must include a description and explanation of any unanticipated deviations from the operations plan which occurred during the test. These deviations must be described in sufficient detail to indicate the tests were continued in a reasonable manner consistent with the approved operations plan procedures. Applicants must provide information on the cost of materials, labor, and installation of the BRD candidate. In addition, any unique or special circumstances of the tests, such as special operational characteristics or fishing techniques which enhance the BRD's performance, should be described and documented as appropriate.
The RA will determine whether the required reports and supporting materials are sufficient to evaluate the BRD candidate's efficiency. The determination of sufficiency would be based on whether the applicant adhered to the prescribed testing procedure or provided adequate justification for any deviations from the procedure during the test. If the RA determines that the data are sufficient for evaluation, the BRD candidate will be evaluated to determine if it meets the bycatch reduction criterion. In making a decision, the RA may consult with evaluation and oversight personnel. Based on the data submitted for review, the RA will determine the effectiveness of the BRD candidate, using appropriate statistical procedures such as Bayesian analyses, to determine if the BRD candidate meets the following criteria:
(1) There is at least a 50-percent probability that the true reduction rate of the BRD candidate meets the bycatch reduction criterion (i.e., the BRD candidate demonstrates a best point estimate [sample mean] that meets the certification criterion); and
(2) There is no more than a 10-percent probability that the true reduction rate of the BRD candidate is more than 5 percent less than the bycatch reduction criterion.
To be certified for use in the fishery, the BRD candidate will have to satisfy both criteria. Criterion 1 will ensure that the observed reduction rate of the BRD candidate has an acceptable level of certainty that it meets the bycatch reduction criterion. Criterion 2 will ensure BRD candidates meeting the bycatch reduction criterion also demonstrate a reasonable degree of certainty that the observed reduction rate represents the true reduction rate of the BRD candidate. This determination ensures the operational use of the BRD candidate in the shrimp fishery will, on average, provide a level of bycatch reduction that meets the established bycatch reduction criterion. Interested parties may obtain details regarding the hypothesis testing procedure to be used by contacting the Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39568 1207; phone (228) 762 4591. Following a favorable determination of the certification analysis, the RA will certify the BRD (with any appropriate conditions as indicated by test results) and add the BRD to the list of certified BRDs in the
In addition, based on the data provided, the RA may provisionally certify a BRD candidate through appropriate rulemaking procedures based on the following criterion:
There is at least a 50-percent probability that the true reduction rate of the BRD candidate is no more than 5 percent less than the bycatch reduction criterion (i.e., the BRD candidate demonstrates a best point estimate [sample mean] within 5 percent of the certification criterion).
A provisional certification will be effective for 2 years from the date of publication in the
III. BRDs Not Certified and Resubmission Procedures
The RA will advise the applicant, in writing, if a BRD is not certified. This notification will explain why the BRD was not certified and what the applicant may do to either modify the BRD or the testing procedures to improve the chances of having the BRD certified in the future. If certification was denied because of insufficient information, the RA will explain what information is lacking. The applicant must provide the additional information within 60 days from receipt of such notification. If the
The RA will decertify a BRD whenever NMFS determines a BRD no longer satisfies the bycatch reduction criterion. Before determining whether to decertify a BRD, the RA will notify the appropriate Fishery Management Council in writing, and the public will be provided an opportunity to comment on the advisability of any proposed decertification. The RA will consider any comments from the Council and public, and if the RA elects to proceed with decertification of the BRD, the RA will publish proposed and final rules in the
A provisionally certified BRD is valid for use in the fishery for 2 years from the date of publication of a notice in the
V. Interactions with Sea Turtles
The following section is provided for informational purposes. Sea turtles are listed under the Endangered Species Act as either endangered or threatened. The following procedures apply to incidental take of sea turtles under 50 CFR 223.206(d)(1):
“Any sea turtles taken incidentally during the course of fishing or scientific research activities must be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water according to the following procedures:
(A) Sea turtles that are actively moving or determined to be dead (as described in paragraph (B)(4) below) must be released over the stern of the boat. In addition, they must be released only when fishing or scientific collection gear is not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels.
(B) Resuscitation must be attempted on sea turtles that are comatose or inactive by:
(1) Placing the turtle on its bottom shell (plastron) so that the turtle is right side up and elevating its hindquarters at least 6 inches (15.2 cm) for a period of 4 to 24 hours. The amount of elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Periodically, rock the turtle gently left to right and right to left by holding the outer edge of the shell (carapace) and lifting one side about 3 inches (7.6 cm) then alternate to the other side. Gently touch the eye and pinch the tail (reflex test) periodically to see if there is a response.
(2) Sea turtles being resuscitated must be shaded and kept damp or moist but under no circumstance be placed into a container holding water. A water-soaked towel placed over the head, carapace, and flippers is the most effective method in keeping a turtle moist.
(3) Sea turtles that revive and become active must be released over the stern of the boat only when fishing or scientific collection gear is not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels. Sea turtles that fail to respond to the reflex test or fail to move within 4 hours (up to 24, if possible) must be returned to the water in the same manner as that for actively moving turtles.
(4) A turtle is determined to be dead if the muscles are stiff (rigor mortis) and/or the flesh has begun to rot; otherwise, the turtle is determined to be comatose or inactive and resuscitation attempts are necessary.
Any sea turtle so taken must not be consumed, sold, landed, offloaded, transshipped, or kept below deck.”
Agricultural Marketing Service, USDA.
Notice.
In accordance with the Federal Advisory Committee Act, as amended, the Agricultural Marketing Service (AMS) is announcing a forthcoming meeting of the National Organic Standards Board (NOSB).
The meeting dates are Wednesday, November 28, 2007, 8 a.m. to 5:30 p.m.; Thursday, November 29, 2007, 8 a.m. to 5:30 p.m.; and Friday, November 30, 2007, 8 a.m. to 5:30 p.m. Requests from individuals and organizations wishing to make oral presentations at the meeting are due by the close of business on November 12, 2007.
The meeting will take place at The Holiday Inn National Airport Hotel, 2650 Jefferson Davis Hwy, Arlington, VA 22202.
• Requests for copies of the NOSB meeting agenda, may be sent to Ms. Valerie Frances, Executive Director, NOSB, USDA-AMS-TMP-NOP, 1400 Independence Ave., SW., Room 4008-So., Ag Stop 0268, Washington, DC 20250-0268. The NOSB meeting agenda and proposed recommendations may also be viewed at
• Comments on proposed NOSB recommendations may be submitted in writing to Ms. Frances at either the postal address above or via the internet at
• Requests to make an oral presentation at the meeting may also be sent to Ms. Valerie Frances at the postal address above, by e-mail at
Valerie Frances, Executive Director, NOSB, National Organic Program (NOP), (202) 720-3252, or visit the NOP Web site at:
Section 2119 (7 U.S.C. 6518) of the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501
In August of 1994, the NOSB provided its initial recommendations for the NOP to the Secretary of Agriculture. Since that time, the NOSB has submitted 148 addenda to its recommendations and reviewed more than 324 substances for inclusion on the National List of Allowed and Prohibited Substances. The Department of Agriculture (USDA) published its final National Organic Program regulation in the
In addition, the OFPA authorizes the National List of Allowed and Prohibited Substances and provides that no allowed or prohibited substance would remain on the National List for a period exceeding 5 years unless the exemption or prohibition is reviewed and recommended for renewal by the NOSB and adopted by the Secretary of Agriculture. This expiration is commonly referred to as sunset of the National List. The National List appears at 7 CFR part 205, subpart G.
The principal purposes of the NOSB meeting are to provide an opportunity for the NOSB to receive an update from the USDA/NOP and hear progress reports from NOSB committees regarding work plan items and proposed action items. The last meeting of the NOSB was held on March 27-29, 2007, in Washington, DC.
At its last meeting, the Board recommended the addition of 35 materials to the National List 205.606 for use in handling and began the sunset review process of 11 materials. At this meeting, the Board will continue the sunset review process of these 11 materials. There are 7 substances for use in crops and handling which were placed on the National List on November 3, 2003, and are scheduled to expire on November 3, 2008. There are 4 substances for use in handling which were placed on the National List on November 4, 2003, and are scheduled to expire on November 4, 2008. The sunset review process must be concluded no later than November 3 and 4, 2008, respectively. If renewal is not concluded by those dates, the use or prohibition of these 11 materials will no longer be in compliance with the National Organic Program.
The Policy Development Committee will present recommendations regarding revisions to the NOSB Policy and Procedures Manual and the Guide for new NOSB members as well as discuss their on-going collaboration with the NOP to review the NOP responses to prior NOSB recommendations. The Policy Development, Crops and Livestock Committees will jointly present their two recommendations: Guidance on the Certification of Operations Involved in Crops Research and Guidance on Temporary Research Variances.
The Materials and Handling Committees will jointly present their recommendation to clarify the definitions of materials on the National List in §§ 205.605(a), (b) and § 205.606.
The Handling Committee will present their recommendations on materials petitioned for consideration for inclusion on either § 205.605 or § 205.606 for use in organic products: Gellan Gum and Grape Seed Extract. The Committee will present their
The Crops Committee will present recommendations on the materials Potassium Silicate, Sodium Carbonate Peroxyhydrate, and Sodium Ferric Hydroxy EDTA petitioned for use on § 205.601. The Committee will present their recommendations on the continued use or prohibition of Copper sulfate, Ozone gas, Peracetic acid, and Environmental Protection Agency (EPA) List 3—Inerts of unknown toxicity, with their respective annotations and limitations. These National List material exemptions are due to expire on November 3, 2008, from § 205.601. The Committee will also present their recommendation on the continued use or prohibition of Calcium chloride for use as a brine-sourced foliar spray. Calcium chloride is otherwise considered a prohibited natural substance on § 205.602 and is also due to expire on November 3, 2008.
The Livestock Committee will receive the Aquaculture Working Group: Supplement to Interim Final Report on Bivalve molluscs as well as discuss the outstanding issues related to fish feed and open net pens in regards to the aquaculture standards for finfish.
The Compliance, Accreditation, and Certification Committee will present their recommendation on the standardization of certificates, and their recommendations offering guidance for accredited certifying agents regarding annual commercial availability determinations for ingredients listed on § 205.606 and organic seed sourcing by farmers under § 205.204, and on the certification of multi-site operations, including community grower groups.
Interested persons may visit the NOSB portion of the NOP Web site at
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that we have prepared a pest risk analysis that evaluates the risks associated with the importation into the continental United States and Hawaii of sweet cherries from Australia. Based on that analysis, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of sweet cherries from Australia. We are making the pest risk analysis, as well as an environmental assessment we have prepared in connection with this action, available for review and comment.
We will consider all comments we receive on or before December 11, 2007.
You may submit comments by either of the following methods:
•
•
Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 734-8758.
Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-47, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States.
Section 319.56-4 of the regulations contains a performance-based process
• The fruits or vegetables are subject to inspection upon arrival in the United States and comply with all applicable provisions of § 319.56-3;
• The fruits or vegetables are imported from a pest-free area in the country of origin that meets the requirements of § 319.56-5 for freedom from that pest and are accompanied by a phytosanitary certificate stating that the fruits or vegetables originated in a pest-free area in the country of origin;
• The fruits or vegetables are treated in accordance with 7 CFR part 305;
• The fruits or vegetables are inspected in the country of origin by an inspector or an official of the national plant protection organization of the exporting country, and have been found free of one or more specific quarantine pests identified by the risk analysis as likely to follow the import pathway; and/or
• The fruits or vegetables are a commercial consignment.
APHIS received a request from the Government of Australia to allow the importation of sweet cherries from Australia into the continental United States and Hawaii. We have completed a pest risk assessment to identify pests of quarantine significance that could follow the pathway of importation into the United States and, based on that pest risk assessment, have prepared a risk management analysis to identify phytosanitary measures that could be applied to the commodity to mitigate the pest risk. We have concluded that sweet cherries can be safely imported into the continental United States and Hawaii from Australia using one or more of the five designated phytosanitary measures listed in § 319.56-4(b). Therefore, in accordance with § 319.56-4(c), we are announcing the availability of our pest risk analysis for public review and comment. The pest risk analysis may be viewed on the Regulations.gov Web site or in our reading room (see
After reviewing the comments we receive, we will announce our decision regarding the import status of sweet cherries from Australia in a subsequent notice. If the overall conclusions of the analysis and the Administrator's determination of risk remain unchanged following our consideration of the comments, then we will begin issuing permits for importation of sweet cherries from Australia into the continental United States and Hawaii subject to the requirements specified in the risk management analysis.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Sierra National Forest, Bass Lake Ranger District is proposing to conduct a comprehensive series of treatments centered on a Wildland Urban Intermix area known as the community of Sugar Pine. Strategically Placed Area Treatments (SPLATs) have been initially identified to provide a means to reduce the intensity and spread of wildland fires across the landscape and near communities. Additional treatments within these SPLATs have been identified where forest stands are densely stocked and thinning is needed. This thinning is needed to reduce inter-tree competition and improve tree vigor and increase stand resistance to drought conditions, insect and disease attack. The effects of implementing the treatments called for in the final decision will be studied by the University of California as they relate to fire and fuels, water quality and quantity, wildlife (specifically the Pacific Fisher) and public involvement. Depending on the results of this study, future management actions on other similar ecosystems may be changed. This approach to monitoring and feedback is called Adaptive Management and is a primary reason for the descriptive title.
To be most effective, comments concerning the scope of this analysis should be received by October 31, 2007. Public scoping for this analysis, originally expected to be documented in an Environmental Assessment, began on April 1, 2007. Unless response to this notice raises concerns not yet expressed, the draft environmental impact statement (DEIS) is expected in November 2007 and the final environmental impact statement (FEIS) is expected in January 2008.
Send comments to the Forest Service at the following addresses. Hardcopy mail: U.S. Forest Service, Sierra National Forest, Bass Lake Ranger District, 57003 Road 225, North Fork, CA 93643, ATTN: David Martin. Electronic mail:
Mark Lemon, Interdisciplinary Team Leader, at Sierra National Forest, Bass Lake Ranger District, 57003 Road 225, North Fork, CA 93643.
The Sugar Pine Adaptive Management Project was originally to be documented in an Environmental Assessment (EA). The Sugar Pine Adaptive Management Project lies within the elevational bands for the Southern Sierra Fisher Conservation Area. Public concern and management review surrounding the
The Sierra National Forest Land and Resource Management Plan (as amended in January 2004) has identified wildland urban intermix areas as places where human habitation is mixed with areas of flammable wildland vegetation and has the highest priority for treatment. As directed in the Sierra Nevada Forest Plan Amendment (2004), national forests are to integrate fire and fuels management objectives with other resource management objectives and address the role of wildland fire in the ecosystem. The forest-wide standards and guidelines state that “vegetation within treatment areas should be modified to meet desired surface, ladder and crown fuel conditions as well as stand densities necessary for healthy forest during drought conditions”.
The community of Sugar Pine (Madera Counties, California) lies in the center portion of the project area. On the northern portion of the project boundary is a large area of private land known as Yosemite Mountain Ranch as well as the community of Fish Camp. Most of the homes in these communities do not have sufficient clearance to protect them if a fast moving wildland fire were to move into the subdivision.
Vegetation in the Sugar Pine Adaptive Management Project area includes conifer stands consisting of ponderosa pine and mixed conifer, where insect and drought induced mortality is beginning to appear in pockets within both natural stands and conifer plantations. In lower to mid-elevations of the project area, on the steeper slopes, brush (manzanita/ceanothus) is the main vegetation. Scattered in pockets throughout the project area are heavy accumulations of dead and down material (branches, limbs and logs) resulting from natural accumulation and past management activities.
The proposed action includes vegetation treatment areas designed to create SPLATs to reduce the intensity and spread of wildland fire across the landscape and near communities and reduce inter-tree competition to improve tree vigor and increase stand resistance to drought induced mortality, insect and disease attack. Additional areas for treatment are proposed to create a defensible fuels profile near key transportation corridors and within the Defense zones of the wildland urban intermix. The treatments proposed include: Thinning in conifer stands, either pre-commercially or commercially to reduce lower level canopy crown densities; mastication of brush and shrub patches; perscribed burning, both understory and piles; manual and/or prescribed burning treatment of noxious weed infestations; prepare and plant failed conifer plantations.
To comply with NEPA, the Forest Service will evaluate additional alternatives to the proposed action, including the no action alternative within the EIS. Additional alternatives suggested through public comment will also be considered. Each alternative will be rigorously explored and evaluated, or rationale will be given for eliminating an alternative from detailed study. A range of alternatives may be considered.
The Responsible Deciding Official is Edward Cole, Forest Supervisor, Sierra National Forest, 1600 Tollhouse Road, Clovis, CA 93612.
The Responsible Deciding Official will use the EIS to make an informed decision as to which alternative best meets the purpose and need for this project or to take no action at this time, in accordance with applicable laws, regulations, and Forest Service Manual/Handbook direction.
The public will be invited to participate in the scoping process, and review of the draft environmental impact statement (DEIS). Comments from the public and other agencies will be used in preparation of the DEIS. A public meeting was held on September 5, 2007. A public field trip is currently scheduled for September 29, 2007. Additional public meetings may be scheduled as requested or needed, but no dates have been set. The DEIS is expected to be available for public review and comment on November 2007 and a FEIS in January 2008.
This notice of intent initiates the scoping process which guides the development of the environmental impact statement.
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Forest Service, USDA.
Notice of Meeting.
The California Coast Provincial Advisory Committee (CCPAC) will meet on October 17, 2007, in Eureka, California. The purpose of the meeting is to discuss issues relating to implementing the Northwest Forest Plan (NWFP).
The meeting will be held from 9 a.m. to 3 p.m.
The meeting will be held at the Six Rivers National Forest, Supervisor's Office, 1330 Bayshore Way, Eureka, California.
Kathy Allen, Committee Coordinator, USDA, Six Rivers National Forest, 1330 Bayshore Way, Eureka, CA 95501, (707) 441-3557,
Agenda topics to be covered include: (1) New Mexico Forest Restoration Principles; (2) Marijuana Cultivation; (3) Orleans Community Fuels Reduction Project; (4) Survey and Manage Update; (5) Northwest Forest Plan Update; and (6) Northern Spotted Owl Recovery Plan Update.
The meeting is open to the public. Public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.
Forest Service, USDA.
Notice of Meeting.
Opal Creek Scenic Recreation Area Advisory Council meetings will convene in Stayton, Oregon on Wednesday, November 7, 2007. These meetings are scheduled to begin at 6:30 p.m., and will conclude at approximately 8:30 p.m. Meetings will be held in the South Room of the Stayton Community Center located on 400 West Virginia Street in Stayton, Oregon.
The Opal Creek Wilderness and Opal Creek Scenic Recreation Area Act of 1996 (Opal Creek Act) (Pub. L. 104-208) directed the Secretary of Agriculture to establish the Opal Creek Scenic Recreation Area Advisory Council. The Advisory Council is comprised of twelve members representing state, county and city governments, and representatives of various organizations, which include mining industry, environmental organizations, inholders in Opal Creek Scenic Recreation Area, economic development, Indian tribes, and public at large. The council provides advice to the Secretary of Agriculture on preparation of a comprehensive Opal Creek Management Plan for the SRA, and consults on a periodic and regular basis on the management of the area. Tentative agenda items include: review and approve Advisory Council Bylaws and Meeting Procedures, Three Pools Recreation Fee Proposal and future focus of the Advisory Council.
A direct public comment period is tentatively scheduled to begin at 8 p.m. Time allotted for individual presentations will be limited to 3 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits of the comment period. Written comments may be submitted prior to the scheduled meeting by sending them to Designated Federal Official Paul Matter at the address given below.
For more information regarding this meeting, contact Designated Federal Official Paul Matter, Willamette National Forest, Detroit Ranger District, HC 73 Box 320, Mill City, OR 97360, (503) 854-3366.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products and services previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice for each product or service will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and service are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for deletion from the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase from People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes from the Procurement List products previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
November 11, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail:
On August 17, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 46208) of proposed deletions to the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Import Administration, International Trade Administration, Department of Commerce.
On October 2, 2006, the Department of Commerce (“the Department”) initiated sunset reviews of the antidumping duty (“AD”) orders and countervailing duty (“CVD”) orders on certain pasta from Italy and Turkey. As a result of the determinations by the Department and the International Trade Commission (“ITC”) that revocation of the AD and CVD orders on pasta from Italy and Turkey would likely lead to continuation or recurrence of dumping and countervailable subsidies, and material injury to an industry in the United States, the Department is publishing a notice of continuation of these AD and CVD orders.
October 12, 2007.
Audrey Twyman (CVD), James Terpstra (AD), or Brandon Farlander, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3534, (202) 482-3965, and (202) 482-0182, respectively.
The AD and CVD orders which cover pasta from Turkey and Italy were published in the
On October 2, 2006, the Department initiated and the ITC instituted sunset reviews of the AD and CVD orders on pasta from Italy and Turkey pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
As a result of its reviews, the Department found that revocation of the AD and CVD orders would likely lead to continuation or recurrence of dumping and countervailable subsidies, and notified the ITC of the magnitude of the margins and net countervailable subsidies likely to prevail were the orders to be revoked.
On September 27, 2007, the ITC determined pursuant to section 751(c) of the Act, that revocation of the AD and CVD orders on pasta from Italy and Turkey would likely lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
Imports covered by the orders are shipments of certain non-egg dry pasta in packages of five pounds four ounces or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastasis, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags of varying dimensions.
Excluded from the scope of the orders are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate.
The merchandise subject to review is currently classifiable under item 1902.19.20 and 1901.90.9095 of the
As a result of the determinations by the Department and the ITC that revocation of these AD and CVD orders would likely lead to continuation or recurrence of dumping and countervailable subsidies, and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the AD and CVD
The effective date of continuation of these orders will be the date of publication in the
These five-year (sunset) reviews and this notice are in accordance with section 751(c) of the Act. This notice is published pursuant to 751(c) and 771(i) of the Act and 19 CFR 351.218(f)(4).
Import Administration, International Trade Administration, Department of Commerce.
On June 6, 2007, the Department of Commerce published the preliminary results of the administrative reviews of the antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom. The reviews cover 21 manufacturers/exporters. The period of review is May 1, 2005, through April 30, 2006.
Based on our analysis of the comments received, we have made changes, including corrections of certain programming and other ministerial errors, in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of the Reviews.”
October 12, 2007.
Yang Jin Chun or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-5760 or (202) 482-4477, respectively.
On June 6, 2007, the Department of Commerce (the Department) published the preliminary results of the administrative reviews of the antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom. See
We invited interested parties to comment on the preliminary results. At the request of certain parties, we held a hearing for general issues on July 17, 2007, and a hearing for Japan-specific issues on July 18, 2007. The Department has conducted these administrative reviews in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
In the
The products covered by the orders are ball bearings (other than tapered roller bearings) and parts thereof. These products include all antifriction bearings that employ balls as the rolling element. Imports of these products are classified under the following categories: antifriction balls, ball bearings with integral shafts, ball bearings (including radial ball bearings) and parts thereof, and housed or mounted ball bearing units and parts thereof.
Imports of these products are classified under the following
As a result of recent changes to the HTS, effective February 2, 2007, the subject merchandise is also classifiable under the following additional HTS item numbers: 8708.30.50.90, 8708.40.75.00, 8708.50.79.00, 8708.50.8900, 8708.50.91.50, 8708.50.99.00, 8708.70.6060, 8708.80.65.90, 8708.93.75.00, 8708.94.75, 8708.95.20.00, 8708.99.55.00, 8708.99.68, 8708.99.81.80.
Although the HTS item numbers above are provided for convenience and customs purposes, the written descriptions of the scope of these orders remain dispositive.
The size or precision grade of a bearing does not influence whether the bearing is covered by one of the orders. These orders cover all the subject bearings and parts thereof (inner race, outer race, cage, rollers, balls, seals, shields, etc.) outlined above with certain limitations. With regard to finished parts, all such parts are included in the scope of the these orders. For unfinished parts, such parts are included if they have been heat-treated or heat treatment is not required to be performed on the part. Thus, the only unfinished parts that are not covered by these orders are those that will be subject to heat treatment after importation. The ultimate application of a bearing also does not influence whether the bearing is covered by the orders. Bearings designed for highly specialized applications are not excluded. Any of the subject bearings, regardless of whether they may ultimately be utilized in aircraft, automobiles, or other equipment, are within the scope of these orders.
For a listing of scope determinations which pertain to the orders, see the Scope Determination Memorandum from the Antifriction Bearings Team to Laurie Parkhill, dated May 29, 2007, which is on file in the Central Records Unit (CRU) of the main Department of Commerce building, room B-099, in the General Issues record (A-100-001) for the 2005-2006 reviews.
All issues raised in the case and rebuttal briefs by parties to the concurrent administrative reviews of the orders on ball bearings and parts thereof are addressed in the “Issues and Decision Memorandum” (Decision Memo) from Stephen J. Claeys, Deputy Assistant Secretary, to David M. Spooner, Assistant Secretary, dated October 4, 2007, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded is in the Decision Memo and attached to this notice as an Appendix. The Decision Memo, which is a public document, is on file in the CRU, main Department of Commerce building, Room B-099, and is accessible on the Web at http://ia.ita.doc.gov/frn/index.html. The paper copy and electronic version of the Decision Memo are identical in content.
The Department disregarded home-market sales that failed the cost-of-production test for the following firms for these final results of reviews:
Based on our analysis of comments received and based on our own analysis of the preliminary results, we have made revisions that have changed the results for certain firms. We have corrected programming and ministerial errors in the preliminary results, where applicable.
We determine that the following percentage weighted-average margins on ball bearings and parts thereof exist for the period May 1, 2005, through April 30, 2006:
The Department will determine and U.S. Customs and Boarder Protection (CBP) shall assess antidumping duties on all appropriate entries. We intend to issue appropriate assessment instructions directly to CBP 15 days after publication of these final results of reviews. In accordance with 19 CFR 351.212(b)(1), we have calculated, whenever possible, an importer/customer-specific assessment rate or value for subject merchandise.The Department clarified its “automatic assessment” regulation on May 6, 2003. See
With respect to export-price (EP) sales, we divided the total dumping margins (calculated as the difference between normal value and the EP) for each exporter's importer or customer by the total number of units the exporter sold to that importer or customer. We will direct CBP to assess the resulting per-unit dollar amount against each unit of merchandise on each of that importer's or customer's entries under the relevant order during the review period.
For constructed export-price (CEP) sales, we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct CBP to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries under the relevant order during the review period. See 19 CFR 351.212(b)(1).
To calculate the cash-deposit rate for each respondent (
To derive a single deposit rate for each respondent, we weight-averaged the EP and CEP deposit rates (using the EP and CEP, respectively, as the weighting factors). To accomplish this when we sampled CEP sales, we first calculated the total dumping margins for all CEP sales during the review period by multiplying the sample CEP margins by the ratio of total days in the review period to days in the sample weeks. We then calculated a total net value for all CEP sales during the review period by multiplying the sample CEP total net value by the same ratio. Finally, we divided the combined total dumping margins for both EP and CEP sales by the combined total value for both EP and CEP sales to obtain the deposit rate.
We will direct CBP to collect the resulting percentage deposit rate against the entered customs value of each of the exporter's entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice. Entries of parts incorporated into finished bearings before sales to an unaffiliated customer in the United States will receive the respondent's deposit rate applicable to the order.
Furthermore, the following deposit requirements will be effective upon publication of this notice of final results of administrative reviews for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication, consistent with section 751(a)(1) of the Act: (1) the cash-deposit rates for the reviewed companies will be the rates shown above; (2) for previously reviewed or investigated companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) the cash-deposit rate for all other manufacturers or exporters will continue to be the “All Others” rate for the relevant order made effective by the final results of review published on July 26, 1993. See
These deposit requirements shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
October 12, 2007.
Cindy Lai Robinson, AD/CVD Operations, Office 9, Import
On July 26, 2007, the Department of Commerce (“the Department”) published a preliminary notice of intent to rescind the antidumping duty new shipper review of certain frozen warm water shrimp from the People's Republic of China (“PRC”) with respect to Maoming Changxing Foods Co., Ltd. (“Maoming Changxing”), covering the period February 1, 2006, through July 31, 2007.
The final results for this new shipper review are currently due on October 17, 2007. Consistent with section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“Act”) and 19 CFR 351.214(i)(2), the Department is extending the time limit for the completion of the final results of this new shipper review by 60 days because the case is extraordinarily complicated. This new shipper review involves complicated ownership and affiliation issues which will require the Department to consider arguments by interested parties regarding the actual owners and the source of founding capital with respect to Maoming Changxing. In addition, the Department requires additional time to consider domestic producers' arguments regarding the antidumping duty rate to apply to Maoming Changxing.
Because of the complexity of issues in this case, and in accordance with section 751(a)(2)(B)(iv) of the Act and 19 CFR 351.214(i)(2), we are extending the time period for issuing the final results of the new shipper review of Maoming Changxing by 60 days. Since a 60-day extension would result in the deadline for the final results falling on December 16, 2007, which is Sunday, the new deadline for the final results will be the next business day, December 17, 2007.
This notice is published pursuant to sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act and section 351.214(i)(2) of the Department's regulations.
Import Administration, International Trade Administration, Department of Commerce.
On August 2, 2007, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on furfuryl alcohol from Thailand. The period of review is July 1, 2005, through May 3, 2006. The final results do not differ from the preliminary results of this review, in which we found that sales of the subject merchandise have not been made below normal value.
October 12, 2007.
Damian Felton or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0133 and (202) 482-0182, respectively.
On July 25, 1995, the Department published an antidumping duty order on furfuryl alcohol from Thailand.
The merchandise covered by this order is furfuryl alcohol (C4H3OCH2OH). Furfuryl alcohol is a primary alcohol, and is colorless or pale yellow in appearance. It is used in the manufacture of resins and as a wetting agent and solvent for coating resins, nitrocellulose, cellulose acetate, and other soluble dyes.
The product subject to this order is classifiable under subheading 2932.13.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.
The period of review (“POR”) is July 1, 2005, through May 3, 2006.
As noted above, the Department received no comments concerning the Preliminary Results. Consistent with the Preliminary Results, we find that a
The Department has determined, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends
The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the period of review produced by reviewed companies for which these companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see
On March 5, 2007, pursuant to section 751(d)(2) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.222(i)(1)(ii), the Department revoked the antidumping duty order on furfuryl alcohol from Thailand (
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to
liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to Administrative Protective Order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
We are issuing and publishing these results and this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC).
Notice and request for applications.
The Cordell Bank National Marine Sanctuary (CBNMS or Sanctuary) is seeking applicants for the following vacant seats on its Sanctuary Advisory Council (Council):
Applications are due by November 1, 2007.
Application kits may be obtained from Cordell Bank National Marine Sanctuary, Rowena Forest, P.O. Box 159, Olema, CA 94950, and on the Cordell Bank Web site at:
Rowena Forest/CBNMS, P.O. Box 159, Olema, CA 94950, (415) 663-0314 x105, and
The Advisory Council for Cordell Bank was established in 2002 to support the joint management plan review process currently underway for the CBNMS and its neighboring sanctuaries, Gulf of the Farallones and Monterey Bay National Marine Sanctuaries. The Council has members representing education, research, conservation, maritime activity, and community-at-large. The government seats are held by representatives from the National Marine Fisheries Service, the United States Coast Guard, and the managers of the Gulf of the Farallones, Monterey Bay and Channel Islands National Marine Sanctuaries. The Council holds four regular meetings per year, and one annual retreat.
16 U.S.C. 1431,
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.
The Caribbean Fishery Management Council (Council) in
Written comments on the scope of issues to be addressed in the DEIS must be received by the Council or NMFS (see
You may submit comments on the proposed rule by any of the following methods:
• E-mail:
• Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
• Fax: 727-824-5308.
• Mail: Graciela Garcia-Moliner, Caribbean Fishery Management Council, 268 Muñoz Rivera Avenue, Suite 1108, San Juan, PR 00918-25772203;
• Fax: 787-766-6239.
• E-mail:
Graciela Garcia-Moliner; phone: 787-766-5927; fax: 787-766-6239; e-mail:
St. Croix queen conch landings by commercial fishermen alone have exceeded sustainable harvest levels since the 2000-2001 fishing season. In 2005-2006 the commercial harvest was over four times sustainable levels. Additionally, there is an unknown but significant recreational harvest.
According to the NMFS Report on the Status of the U.S. Fisheries for 2006, queen conch is overfished and undergoing overfishing. Under current fishing practices, reductions in mortality are not expected to be sufficient in the queen conch fishery. Without a reduction in mortality, queen conch are not expected to achieve the rebuilding goals established in the Sustainable Fisheries Amendment of 2005. Therefore, a change in fishing practices is needed to help achieve the necessary reductions in queen conch fishing mortality.
The Council in conjunction with NMFS will develop a DEIS to describe and analyze management alternatives to implement harvest restrictions in the queen conch fishery. The DEIS will provide updates to the best available scientific information regarding the queen conch stock, and based on the information, the Council, in conjunction with NMFS, will determine what actions and alternatives are necessary to protect queen conch. Those alternatives may include, but are not limited to: a “no action” alternative regarding the fishery, which would not require any harvest reductions; alternatives to extend existing closed seasons; and an alternative to close the area east of 64°34′ W. longitude that includes Lang Bank east of St. Croix, U.S. Virgin Islands to the harvest of queen conch.
In accordance with NOAA's Administrative Order NAO 216-6, Section 5.02(c), the Council, in conjunction with NMFS, has identified this preliminary range of alternatives as a means to initiate discussion for scoping purposes only. This may not represent the full range of alternatives that eventually will be evaluated by the Council and NMFS.
Once the Council and NMFS completes the DEIS associated with the amendment to the Caribbean queen conch FMP, NMFS will submit the DEIS for filing with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
The Council and 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. The Council will submit both the final amendment and the supporting FEIS to NMFS for review under the Magnuson-Stevens Fishery Conservation and Management Act, i.e., Secretarial review.
NMFS will announce, through a notice published in the
NMFS will announce, through a notice published in the
All scoping meetings are scheduled to be held from 7 p.m. to 10 p.m. The meetings will be physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to the Council (see
October 16—Windward Passage Hotel, Charlotte Amalie, St. Thomas, USVI.
October 17—Buccaneer Hotel, Christiansted, St Croix, USVI.
October 23—Pierre Hotel, De Diego Avenue, San Juan, PR.
October 24—Ponce Golf and Casino Resort, 1150 Caribe Avenue, Ponce, PR.
October 25—Mayaguez Holiday Inn, 2701 Highway #2, Mayaguez, PR.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
NMFS announces the meeting of the General Advisory Committee to
The meeting of the General Advisory Committee will be held on November 2, 2007, from 9 a.m. to 5 p.m. (or until business is concluded), Pacific time. Meeting topics can be found in the
The meeting will be held via video conference at NMFS, Southwest Regional Office, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90803-4213, and at the NMFS Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, Large Conference Room, La Jolla, CA 92037-1508.
Allison Routt at (562)980-4019 or (562) 980-4030.
In accordance with the Tuna Conventions Act, as amended, the Department of State has appointed a General Advisory Committee to the U.S. Section to the IATTC. The U.S. Section consists of the four U.S. Commissioners to the IATTC and the representative of the Deputy Assistant Secretary of State for Oceans and Fisheries. The Advisory Committee supports the work of the U.S. Section in a solely advisory capacity with respect to U.S. participation in the work of the IATTC, with particular reference to the development of policies and negotiating positions pursued at meetings of the IATTC. NMFS, Southwest Region, administers the Advisory Committee in cooperation with the Department of State.
The General Advisory Committee to the U.S. Section to the IATTC will meet to receive and discuss information on: (1) 2007 IATTC activities; (2) status of the stocks and status of the fishery in 2007; (3) recent and upcoming meetings of the IATTC and its working groups; (4) conservation and management measures for yellowfin and bigeye tuna for 2008 and beyond; (5) measures to be taken in cases of noncompliance with the IATTC's conservation and management measures; (6) management of fishing capacity; (7) IATTC cooperation with other regional fishery management organizations; (8) Magnuson-Stevens Fishery Conservation and Management Act reauthorization; (9) Advisory Committee operational issues; and (10) ther issues.
The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Allison Routt at (562) 980-4019 or (562) 980-4030 by October 26, 2007.
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration, Department of Commerce (DOC).
Notice and request for applications.
The Olympic Coast National Marine Sanctuary (OCNMS or sanctuary) is seeking applicants for the following vacant seats on its Sanctuary Advisory Council (council): Citizen-at-large member and alternate, Tourism/Chamber of Commerce/Recreation member and alternate, and Conservation/Environmental member and alternate. Applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; philosophy regarding the protection and management of marine resources; and possibly the length of residence in the area affected by the sanctuary. The terms of the seats are for three years with the exception of the Conservation/Environmental seat which has one year remaining on an unexpired term.
Applications are due by November 16, 2007.
Application kits may be obtained from Andrew Palmer, Olympic Coast National Marine Sanctuary, 115 East Railroad Ave., Suite 301, Port Angeles, WA 98362. Completed applications should be sent to the same address.
Andrew Palmer, Olympic Coast National Marine Sanctuary, 115 East Railroad Ave., Suite 301, Port Angeles, WA 98362, Phone (350) 457-6622, ext. 15, e-mail
Sanctuary Advisory Council members and alternates serve three-year terms. The Advisory Council meets bi-monthly in public sessions in communities in and around the Olympic Coast National Marine Sanctuary.
The Olympic Coast National Marine Sanctuary Advisory Council was established in December 1998 to assure continued public participation in the management of the sanctuary. Serving in a volunteer capacity, the advisory council's 15 voting members represent a variety of local user groups, as well as the general public. In addition, five Federal government agencies and one federally funded program serve as non-voting, ex officio members. Since its establishment, the advisory council has played a vital role in advising the sanctuary and NOAA on critical issues. In addition to providing advice on management issues facing the Sanctuary, the Council members serve as a communication bridge between constituents and the Sanctuary staff.
16 U.S.C. Sections 1431,
National Oceanic and Atmospheric Administration (NOAA), Office of Ocean and Coastal Resource Management, National Ocean Service, Commerce.
Notice of intent to evaluate and notice of availability of final findings.
The NOAA Office of Ocean and Coastal Resource Management (OCRM) announces its intent to evaluate the performance of the Grand Bay (Mississippi) National Estuarine Research Reserve, the Alabama Coastal Management Program, and the Virgin Islands Coastal Management Program.
The Coastal Zone Management Program evaluations will be conducted pursuant to section 312 of the Coastal Zone Management Act of 1972, as amended (CZMA) and regulations at 15 CFR Part 923, Subpart L. The National Estuarine Research Reserve evaluation
Each evaluation will include a site visit, consideration of public comments, and consultations with interested Federal, State, and local agencies and members of the public. A public meeting will be held as part of each site visit. Notice is hereby given of the dates of the site visits for the listed evaluations, and the dates, local times, and locations of the public meetings during the site visits.
The Alabama Coastal Management Program evaluation site visit will be held December 3-7, 2007. One public meeting will be held during the week. The public meeting will be held on Monday, December 3, 2007, at 5:30 p.m. at 5 Rivers—Alabama's Delta Resource Center, Tensaw Theater, 30945—5 Rivers Boulevard, Spanish Fort, Alabama.
The Virgin Islands Coastal Management Program evaluation site visit will be held December 3-7, 2007. Three public meetings will be held during the week. The first public meeting will be held on Tuesday, December 4, 2007, at 6 p.m. at the Cyril E. King Airport Terminal Building, Second Floor, Department of Planning and Natural Resources Conference Room, 8100 Lindberg Bay, St. Thomas. The second public meeting will be held on Wednesday, December 5, 2007, at 6 p.m. at the Henry Rohlsen Airport, Second Floor, Port Authority Conference Room, St. Croix. The third public meeting will be held on Thursday, December 6, 2007, at 6 p.m. at the St. John Legislature Conference Room, 109 Enigned Contant, St. John.
Copies of states' most recent performance reports, as well as OCRM's evaluation notification and supplemental information request letters to the states, are available upon request from OCRM. Written comments from interested parties regarding these Programs are encouraged and will be accepted until 15 days after the public meeting held for a Program. Please direct written comments to Bill O'Beirne, Acting Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910. When the evaluation is completed, OCRM will place a notice in the
Notice is hereby given of the availability of the final evaluation findings for the Weeks Bay (Alabama) and Waquoit Bay (Massachusetts) National Estuarine Research Reserves (NERRs). Sections 312 and 315 of the Coastal Zone Management Act of 1972 (CZMA), as amended, require a continuing review of the performance of coastal states with respect to the operation and management of NERRs. The Weeks Bay and Waquoit Bay NERRs were found to be adhering to programmatic requirements of the NERR System and the programmatic terms of their financial assistance awards.
Copies of these final evaluation findings may be obtained upon written request from: Bill O'Beirne, Acting Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910, or
Bill O'Beirne, Acting Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910, (301) 563-1160.
Proposed collection; comment request.
The United States Patent and Trademark Office (USPTO), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before December 11, 2007.
You may submit comments by any of the following methods:
Requests for additional information should be directed to Sharon Marsh, Deputy Commissioner for Trademark Examination Policy, Office of the Commissioner for Trademarks, United States Patent and Trademark Office, P.O. Box 1451, Alexandria, VA 22313-1451, by telephone at 571-272-8900, or by e-mail at
The Trademark Law Treaty Implementation Act (Pub. L. 105-330, § 302, 112 Stat. 3071 (1998)) required the United States Patent and Trademark Office (USPTO) to study issues surrounding the protection of the official insignia of federally- and state-recognized Native American tribes under trademark law. The USPTO conducted the study and presented a report to the House and Senate Judiciary Committees on November 30, 1999. One of the recommendations made in the report was that the USPTO create and maintain an accurate and comprehensive database containing the official insignia of all federally- and state-recognized Native American tribes. In accordance with this
The USPTO database of official tribal insignias assists trademark attorneys in their examination of applications for trademark registration. Additionally, the database provides evidence of what a federally-or state-recognized Native American tribe considers to be its official insignia. The database serves as a reference for examining attorneys when determining the registrability of a mark that may be similar to the official insignia of a Native American tribe. The database is also available to the public on the USPTO Web site.
Tribes are not required to request that their official insignia be included in the database. The entry of an official insignia into the database does not confer any rights to the tribe that submitted the insignia, and entry is not the legal equivalent of registering the insignia as a trademark under 15 U.S.C. 1051
Requests from federally-recognized tribes to enter an official insignia into the database must be submitted in writing and include: (1) A depiction of the insignia, including the name of the tribe and the address for correspondence; (2) a copy of the tribal resolution adopting the insignia in question as the official insignia of the tribe; and (3) a statement, signed by an official with authority to bind the tribe, confirming that the insignia included with the request is identical to the official insignia adopted by the tribal resolution.
Requests from state-recognized tribes must also be in writing and include each of the three items above submitted by federally-recognized tribes. Additionally, requests from state-recognized tribes must include either: (a) A document issued by a state official that evidences the state's determination that the entity is a Native American tribe; or (b) a citation to a state statute designating the entity as a Native American tribe. The USPTO enters insignia that have been properly submitted by federally-or state-recognized Native American tribes into the database and does not investigate whether the insignia is actually the official insignia of the tribe making the request.
This collection includes the information needed by the USPTO to enter an official insignia for a federally-or state-recognized Native American tribe into a database of such insignia. No forms are associated with this collection.
By mail or facsimile to the USPTO.
Customers may incur postage costs when submitting the information in this collection to the USPTO by mail. The USPTO estimates that the average first-class postage cost for a submission mailed through the U.S. Postal Service will be 92 cents and that up to 15 submissions will be mailed to the USPTO per year. The total estimated postage cost for this collection is approximately $14 per year.
The total non-hour respondent cost burden for this collection in the form of postage costs is $14 per year.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, e.g., the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Department of the Navy, DOD.
Notice.
The Board of Visitors of the Marine Corps University (BOV MCU) will meet to review, develop and provide recommendations on all aspects of the academic and administrative policies of the University; examine all aspects of professional military education operations; and provide such oversight and advice, as is necessary, to facilitate high educational standards and cost effective operations. The Board will be focusing primarily on Professional Military Education in the Marine Corps. All sessions of the meeting will be open to the public.
The meeting will be held on Monday, November 5, 2007 from 8 a.m. to 4 p.m. and on Tuesday, November 6, 2007, from 8 a.m. to 12 p.m.
The meeting will be held at Marine Corps University in the Hooper Room, Marine Corps University, 2076 South Street, Quantico, Virginia 22134.
Mary Lanzillotta, Executive Secretary, Marine Corps University Board of Visitors, 2076 South Street, Quantico, Virginia 22134, telephone number 703-784-4037.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 11, 2007.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
After processing the Free Application for Federal Student Aid (FAFSA), the Department sends FAFSA applicants a Student Aid Report (SAR). The SAR contains the results of eligibility and expected family contribution determinations, information that the student originally reported on the FAFSA, and information about the applicant's financial aid history from the Department's National Study Loan Data System. SAR recipients are expected to review the information on the SAR and (1) correct errors in the reported information, (2) update information that may have changed since filing the FAFSA, (3) verify the responses if so requested, and on the paper SAR, (4) correct illegible information, or (5) supply missing information. The Secretary of Education requests comments on the SAR that the Department proposes to use for the 2008-2009 award year.
Interested persons are invited to submit comments on or before November 13, 2007.
Written comments should be addressed to Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503 or via fax to (202) 395-6974.
In addition, interested persons can access this document on the Internet:
(1) Go to IFAP at
(2) Scroll to “On-Line References”;
(3) Click on “SAR/ISR Reference Materials”;
(4) Click on “By 2008-2009 Award Year”;
(5) Click on “Draft 2008-2009 Student Aid Reports (SAR) and SAR Acknowledgement Mockups are available for public comment”.
Please note that the free Adobe Acrobat Reader software, version 4.0 or greater, is necessary to view this file. This software can be downloaded for free from Adobe's Web site:
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m. Eastern time, Monday through Friday.
The Secretary is publishing this request for comment under the Provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. Under that Act, ED must obtain the review and approval of the Office of Management and Budget (OMB) before it may use a form to collect information. However, under procedure for obtaining approval from OMB, ED must first obtain public comment of the proposed form, and to obtain that comment, ED must publish this notice in the
In addition to comments requested above, to accommodate the requirements of the Paperwork Reduction Act, the Secretary is interested in receiving comments with regard to the following matters: (1) Is this collection necessary to the proper functions of the Department, (2) will this information be processed and used in a timely manner, (3) is the estimate of burden accurate, (4) how might the Department enhance the quality, utility, and clarity of the information to be collected, and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
E-mail address
Requests for copies of the proposed information collection request may be accessed from
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 13, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The ED 524B form and instructions are used in order for grantees to meet ED deadline dates for submission of performance reports for Department discretionary grant programs. Recipients of multi-year discretionary grants must submit an annual performance report for each year funding has been approved in order to receive a continuation award. The annual performance report should demonstrate whether substantial progress has been made toward meeting the approved goals and objectives of the project. ED program offices may also require recipients of “forward funded” grants that are awarded funds for their entire multi-year project up-front in a single grant award to submit the ED 524B on an annual basis. In addition, ED program offices may also require recipients to use the ED 524B to submit their final performance reports to demonstrate project success, impact and outcomes. In both the annual and final performance reports, grantees are required to provide data on established performance measures for the grant program (e.g., Government Performance and Results Act measures) and on project performance measures that were included in the grantee's approved grant application. The ED 524B also contains a number of questions related to project financial data such as Federal and non-Federal expenditures and indirect cost information.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 13, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Teachers who receive the intervention in this study will apply the hybrid approach using the Kentucky Virtual High School's (KVHS) online course curriculum in Algebra I. They will be supported by extensive professional development in hybrid instruction and research-based practices for teaching Algebra I. The KVHS course is fully aligned with national and new state standards for Algebra instruction. The results on improved instructional practices, classroom quality, and student learning will be compared to those in control sites in which Algebra I instruction will continue as it has with traditional classroom instruction.
Participating schools will be randomly assigned to either an intervention group or a control group in Spring 2008 and participating teachers will assume the intervention or control status assigned to their school. Baseline data collection for both intervention and control groups will begin in the fall of 2008, and continue each semester through spring 2010. Participating teachers in the intervention schools will begin professional development in May 2008, and will continue with the facilitated face-to-face online support of a master teacher as they implement the intervention in 2008-2009. Teachers will continue to have access to all of the online resources for instruction in 2009-2010, as well as on-demand support from KVHS. Results of the study will be made available following a technical review by the U.S. Department of Education, Institute of Education Sciences.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before November 13, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by e-mail to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Office of Special Education and Rehabilitative Services (OSERS), Department of Education.
Notice announcing application deadline.
Under the Paperwork Waiver Demonstration Program (Paperwork Waiver Program), the Assistant Secretary for Special Education and Rehabilitative Services will select up to 15 States to participate in a single, one-time only pilot program. State proposals approved under this program will create opportunities for participating States to reduce paperwork burdens and other administrative duties in order to increase time for instruction and other activities, while preserving students' civil rights and promoting improved educational and functional results for children with disabilities. In this notice we establish the deadline for submission of the Paperwork Waiver Program applications.
Applications to participate in the Paperwork Waiver Program may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery, please refer to section I. 5.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Through the Paperwork Waiver Program, established under section 609(a) of the Act, the Secretary may grant waivers to States (including Puerto Rico, the District of Columbia and the outlying areas) of certain statutory and regulatory requirements under part B of the Act for up to four years. These waivers may not affect the right of a child with a disability to receive a free appropriate public education (FAPE) and must preserve the basic rights of students with disabilities.
On December 19, 2005, we published a notice of proposed requirements and selection criteria for the Paperwork Waiver Program in the
Eligible applicants under the Paperwork Waiver Program are: State educational agencies (SEAs) in any State, including the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.
The Department is not bound by any estimates in this notice.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA Number 84.326P.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; the one-page abstract, the resumes, the bibliography, the references, or the letters of support.
3.
4.
5.
a.
To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. Paperwork Waiver Program, CFDA Number 84.326P, is included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic application for the Paperwork Waiver Program competition at
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education, Application Control Center,
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
Patricia Gonzalez, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4082, Potomac Center Plaza (PCP), Washington, DC 20202-2600.
If you use a TDD, call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Office of Special Education and Rehabilitative Services (OSERS), Department of Education.
Notice announcing application deadline.
Under the Multi-Year Individualized Education Program (IEP) Demonstration Program (Multi-Year IEP Program), the Assistant Secretary for Special Education and Rehabilitative Services will select up to 15 States to participate in a single one-time only pilot program. State proposals approved under this program will create opportunities for participating local educational agencies (LEAs) to improve long-term planning for children with disabilities through the development and use of comprehensive multi-year IEPs. Additionally, the pilot program will focus on an identified national need to reduce the paperwork burden associated with IEPs while preserving students' civil rights and promoting academic achievement. In this notice we
Applications to participate in the Multi-Year IEP Program may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery, please refer to section I. 5.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
On December 19, 2005, we published a notice of proposed requirements and selection criteria for the Multi-Year IEP Program in the
Eligible applicants under the Multi-Year IEP Program are: State educational agencies (SEAs) in any State, including the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas.
The Department is not bound by any estimates in this notice.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA Number 84.326Q.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; the one-page abstract, the resumes, the bibliography, the references, or the letters of support. However, the page limit does apply to all of the application narrative section.
3.
4.
5.
a.
To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. Multi-Year IEP Program, CFDA Number 84.326Q, is included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic application for the Multi-Year IEP Program competition at
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
or
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.326Q), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
Patricia Gonzalez, U.S. Department of Education, 400 Maryland Avenue, SW., room 4082, Potomac Center Plaza (PCP), Washington, DC. 20202-2600. Telephone: (202) 245-7355.
If you use a TDD, call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
U.S. Department of Energy.
Notice of availability.
The Department of Energy (DOE or the Department) announces the availability of two draft National Environmental Policy Act (NEPA) documents related to its Yucca Mountain Project:
Nye County, Nevada, the location of the proposed Yucca Mountain repository, participated as a cooperating agency in the preparation of the Draft Repository SEIS. The U.S. Air Force, U.S. Bureau of Land Management, and the Surface Transportation Board participated as cooperating agencies in the preparation of the Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS.
DOE invites interested parties to comment on the two documents during a 90-day public comment period. During the public comment period, DOE will hold eight public hearings at six locations in Nevada, one location in California, and one location in Washington, DC, the locations and times of which are described below.
The Department invites comments on the Draft Repository SEIS, and the Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS during the 90-day public comment period, which ends January 10, 2008. Comments received after this date will be considered to the extent practicable. Public hearings are described below in the
Requests for additional information on the Draft Repository SEIS, or the Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS should be directed to either: Dr. Jane Summerson or Mr. Lee Bishop, EIS Office, Office of Civilian Radioactive Waste Management, U.S. Department of Energy, 1551 Hillshire Drive, Las Vegas, NV 89134, or by calling 1-800-967-3477 or faxing a request to 1-800-967-0739.
Written comments on the Draft Repository SEIS, and/or the Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS may be submitted to the EIS Office at the above address, by facsimile to 1-800-967-0739, or via the Internet at
For general information regarding the DOE NEPA process contact: Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, Telephone 202-586-4600, or leave a message at 1-800-472-2756.
Section 111(a)(4) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), 42 U.S.C. 10131, states that the Federal Government has the:
* * * responsibility to provide for the permanent disposal of high-level radioactive waste and such spent nuclear fuel as may be disposed of in order to protect the public health and safety and the environment.
The NWPA directs the Secretary of Energy, if the Secretary decides to recommend approval of the Yucca Mountain site for development of a repository, to submit a final environmental impact statement with any recommendation to the President. The Department prepared the
On February 14, 2002, the Secretary transmitted his recommendation (including the Yucca Mountain Final EIS) to the President for approval of the Yucca Mountain site for development of the Nation's first permanent geologic repository for the disposal of spent nuclear fuel and high-level radioactive waste. The President considered the site qualified for application to the U.S. Nuclear Regulatory Commission (NRC) for construction authorization and recommended the site to the U.S. Congress. Subsequently, on July 23, 2002, the President signed into law (Pub. L. 107-200) a joint resolution of the U.S. House of Representatives and the U.S. Senate designating the Yucca Mountain site for development as a geologic repository for the disposal of spent nuclear fuel and high-level radioactive waste. The Department is preparing an application for submittal to the NRC seeking authorization to construct the repository, as required by the NWPA (Section 114(b)).
In the Yucca Mountain Final EIS, DOE considered the potential environmental impacts of a repository design for surface and subsurface facilities; a range of canister packaging scenarios and repository thermal operating modes; and plans for the construction, operation, monitoring, and eventual closure of the repository. The Yucca Mountain Final EIS also described and evaluated the transportation of spent nuclear fuel and high-level radioactive waste from commercial and DOE sites to the repository by two principal modes—mostly truck and mostly rail. DOE recognized at that time that these repository design concepts and operational plans would continue to develop during the design and engineering process.
Since completion of the Yucca Mountain Final EIS in 2002, DOE has continued to develop the repository design and associated construction and operational plans. For example, as now proposed, the newly designed surface and subsurface facilities would allow DOE to operate the repository following a primarily canistered approach in which most commercial spent nuclear fuel would be packaged at the reactor sites in transportation, aging, and disposal (TAD) canisters. Any commercial spent nuclear fuel arriving at the repository in packages other than TAD canisters would be repackaged by DOE into TAD canisters in these surface facilities at the repository. DOE would construct these facilities over a period of several years (referred to as phased construction) to accommodate the increase in spent nuclear fuel and high-level radioactive waste receipt rates as repository operational capability reaches its design capacity.
On October 13, 2006 (71 FR 60490), the Department issued a Notice of Intent to prepare a supplement to the Yucca Mountain Final EIS, to inform the public of the proposed scope of the Repository SEIS, to solicit public input regarding the document's scope, and to announce the schedule of scoping meetings that would be held. During the public scoping period, which closed on December 12, 2006, DOE held four public scoping meetings.
The Draft Repository SEIS evaluates a Proposed Action and a No Action Alternative. Under the Proposed Action, DOE would construct, operate, monitor, and eventually close a geologic repository at Yucca Mountain for the disposal of up to 70,000 metric tons of heavy metal (MTHM) of commercial and DOE-owned spent nuclear fuel and high-level radioactive waste. Under the Proposed Action, most spent nuclear fuel and high-level radioactive waste would be shipped from 72 commercial and 4 DOE sites to the repository in NRC-certified transportation casks placed on trains dedicated only to these shipments. Some shipments would arrive at the repository by truck.
Under the No Action Alternative, DOE would terminate activities at Yucca Mountain and undertake site reclamation to mitigate any significant adverse environmental impacts.
Commercial nuclear power utilities and DOE would continue to manage spent nuclear fuel and high-level radioactive waste at sites throughout the United States.
Since issuance of the Yucca Mountain Final EIS, DOE issued a Record of Decision on April 8, 2004 (69 FR 18557) announcing its selection, both nationally and in the State of Nevada, of the mostly rail scenario analyzed in the Yucca Mountain Final EIS as the mode of transportation for shipments of spent nuclear fuel and high-level radioactive waste to the repository. Implementation of the mostly rail scenario ultimately will require construction of a rail line to connect the repository site at Yucca Mountain to an existing rail line in the State of Nevada. To that end, in the same Record of Decision, the Department also selected the Caliente rail corridor to study possible alignments for this proposed rail line within Nevada.
Also on April 8, 2004 (69 FR 18565), DOE published a Notice of Intent to prepare an EIS under NEPA for the alignment, construction, and operation of a rail line for shipments of spent nuclear fuel, high-level radioactive waste, and other materials related to the construction and operation of a repository from a site near Caliente, Nevada, to a geologic repository at Yucca Mountain, Nevada (Rail Alignment EIS; DOE/EIS-0369). The subsequent public scoping period closed on June 1, 2004, during which time the Department held five public scoping meetings.
During this public scoping period, DOE received comments suggesting that other rail corridors should be considered, in particular, the Mina route, which crosses the Walker River Paiute Tribe Reservation. In the Yucca Mountain Final EIS, DOE had considered but eliminated the Mina route from detailed study. The Department did not study the Mina route in detail in the Yucca Mountain Final EIS because a rail line within the Mina route could only connect to an existing rail line by crossing the Walker River Paiute Reservation, and the Tribe had informed DOE that it objected to the transportation of nuclear waste across its Reservation. However, following review of the scoping comments, DOE held discussions with the Tribe regarding the availability of the Mina route for evaluation. In May 2006, the Tribal Council for the Walker River Paiute Tribe informed DOE that it withdrew its objection to the completion of an EIS for the transportation of nuclear waste across the Walker River Paiute Reservation.
On October 13, 2006 (71 FR 60484), after a preliminary evaluation of the feasibility of the Mina rail corridor, DOE amended its 2004 Notice of Intent and announced the Department's intent to expand the scope of the Rail Alignment EIS to consider the potential environmental impacts of constructing and operating a rail line within the Mina corridor (corridor-level analysis) and, if warranted, to consider in detail alignments for the construction and operation of a railroad within the Mina corridor (in addition to alignments within the Caliente corridor). The subsequent public scoping period closed on December 12, 2006, during which time the Department held eight public scoping meetings.
The expanded EIS (now the Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS) is comprised of two parts. The Draft Nevada Rail Corridor SEIS (DOE/EIS-0250F-S2D) supplements the Nevada rail corridor analysis in the Yucca Mountain Final EIS by analyzing the potential environmental impacts associated with constructing and operating a railroad to connect the Yucca Mountain repository to an existing rail line near Wabuska, Nevada (the Mina corridor). In it, DOE analyzes the Mina corridor at a level of detail commensurate with that of the rail corridor analysis in the Yucca Mountain Final EIS. DOE also analyzes a No Action Alternative under which DOE would not construct and operate a railroad within the Mina corridor. The Draft Nevada Rail Corridor SEIS also updates, as appropriate, the rail corridor analysis of the Yucca Mountain Final EIS to identify any significant new circumstances or information relevant to environmental concerns associated with rail corridors analyzed previously (Carlin, Valley Modified, and Jean rail corridors).
The Draft Rail Alignment EIS (DOE/EIS-0369D) analyzes the potential environmental impacts associated with potential rail alignments within the Caliente and Mina corridors, and analyzes constructing and operating a railroad in Nevada to transport spent nuclear fuel, high-level radioactive waste, and other Yucca Mountain project materials to a repository at Yucca Mountain. As such, it tiers from the broader corridor analysis in both the Yucca Mountain Final EIS and the Draft Nevada Rail Corridor SEIS, consistent with CEQ regulations (see 40 CFR 1508.28). The Draft Rail Alignment EIS also analyzes a No Action Alternative under which DOE would not determine an alignment nor construct and operate a railroad within either the Caliente or Mina corridors.
On April 17, 2007, the Tribal Council for the Walker River Paiute Tribe passed a resolution withdrawing support for the Tribe's participation in the preparation of the Draft Rail Corridor SEIS and Draft Rail Alignment EIS. The Tribal Council's decision was based on a review of information gathered to date and input from tribal members.
The Tribal Council's resolution also renewed the Tribe's past objection to the transportation of nuclear waste through their Reservation. Accordingly, DOE has identified the Mina Implementing Alternative as “nonpreferred” in the Draft Rail Alignment EIS.
In the Draft Rail Alignment EIS, the Department identifies the Caliente Implementing Alternative as its preferred alternative, and identifies its preferred rail alignment as comprising the following segments (starting in Caliente and ending at Yucca Mountain): Caliente Alternative Segment, Common Segment 1, Garden Valley 1, Common Segment 2, South Reveille 3, Common Segment 3, Goldfield 3, Common Segment 4, Bonnie Claire 3, Common Segment 5, Oasis Valley 1, and Common Segment 6. The location of these segments and the basis for DOE's preferences are provided in the document. The Department also indicates in the Draft Rail Alignment EIS that it prefers the Shared Use option, that is, DOE would make its rail line available to commercial shippers for shipments of general freight. The Department invites comments on its preferred implementing alternative and associated preferred rail alignment and on its preference to enable use of the rail line by commercial shippers.
DOE, in the Draft Rail Alignment EIS, also evaluates three potential locations along the Caliente Implementing Alternative for a Staging Yard: Two along the Caliente alternative segment (referred to as Indian Cove and Upland) and one along the Eccles alternative segment (referred to as Eccles-North). The Staging Yard would be used to hold railcars with spent nuclear fuel and high-level radioactive waste, and to hold and sort railcars with construction and other materials. The Department has not identified a preferred location for the Staging Yard and invites comments that would help DOE identify a preferred location.
Nye County, Nevada, the location of the proposed Yucca Mountain repository, participated as a cooperating agency in the preparation of the Draft Repository SEIS. The U.S. Air Force, the U.S. Bureau of Land Management, and the Surface Transportation Board are cooperating agencies in the preparation of the Draft Nevada Rail Corridor SEIS and Rail Alignment EIS.
The public is invited to provide oral and written comments on the Draft Repository SEIS, and/or Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS during a 90-day public comment period. The comment period begins with publication of this Notice of Availability in the
DOE will hold eight public hearings on the Draft Repository SEIS, and Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS. The hearings will be held at the following locations and times:
• Hawthorne, Nevada. Hawthorne Convention Center, 932 E. Street, November 13, 2007, from 4 to 7 p.m.
• Caliente, Nevada. Caliente Youth Center, U.S. Highway 93, November 15, 2007, from 5:30 to 8 p.m.
• Reno/Sparks, Nevada. Reno-Sparks Convention Center, 4590 S. Virginia Street, November 19, 2007, from 4 to 7 p.m.
• Town of Amargosa Valley, Nevada. Longstreet Inn & Casino, Highway 373, November 26, 2007, from 4 to 7 p.m.
• Goldfield, Nevada. Goldfield School Gymnasium, Hall & Euclid, November 27, 2007, from 4 to 7 p.m.
• Lone Pine, California. Statham Hall, 138 N. Jackson Street, November 29, 2007, from 4 to 7 p.m.
• Las Vegas, Nevada. Cashman Center, 850 Las Vegas Blvd., December 3, 2007, from 4 to 7 p.m.
• Washington, DC Marriott at Metro Center, 775 12th Street, NW., December 5, 2007, from 2 to 5 p.m.
The public hearings will provide members of the public the opportunity to provide oral comments on the record. Members of the public who plan to present oral comments are asked to register in advance by calling 1-800-225-6972; speakers also may register upon arrival at the hearing location. The Department intends to allot five minutes to each individual wishing to provide oral comments so as to ensure that each registered individual has the opportunity to speak. If time permits, more than five minutes will be allotted by the hearing officer.
Prior to, and coincident with, the public hearings, members of the public are invited to engage DOE representatives in one-on-one discussions in an open-house format. Members of the public also may offer comments in writing or in person (orally) to a DOE representative in the presence of a court reporter during these discussions.
Comments on the Draft Repository SEIS, and/or Draft Nevada Rail Corridor SEIS and Draft Rail Alignment EIS may be provided in writing, by facsimile, or via the Internet to the EIS Office (see
Documents referenced in this Notice of Availability and related information are available at the following locations: Esmeralda County Yucca Mountain Oversight Office, 274 E. Crook Avenue, Goldfield, NV 89013, (775) 485-3419; Lincoln County Nuclear Waste Project Office, 100 Depot Avenue, Caliente, NV 89008, (775) 726-3511; Nye County Nuclear Waste Repository Project Office, 1210 E. Basin Road, Suite #6, Pahrump, NV 89060 (775) 727-7727; Pahrump Yucca Mountain Information Center, 2341 Postal Drive, Pahrump, NV 89048, (775) 751-7480; University of Nevada, Reno, The University of Nevada Libraries, Business and Government Information Center, M/S 322, 1664 N. Virginia Street, Reno, NV 89557, (775) 813-6496; and the U.S. Department of Energy Headquarters Office Public Reading Room, 1000 Independence Avenue, SW., Room 1E-190 (ME-74) FORS, Washington, DC 20585, 202-586-3142.
Western Area Power Administration, DOE.
Notice of Record of Decision and Floodplain Statement of Findings.
The Department of Energy (DOE) received applications from North Branch Resources, LLC (NBR) and Generadora del Desierto, S.A. de C.V. (GDD) to construct the proposed San Luis Rio Colorado Project in Yuma County, Arizona. NBR and GDD (collectively termed the Applicants) are each wholly owned subsidiaries of North Branch Holding, LLC. GDD applied to Office of Electricity Delivery and Energy Reliability (OE), an organizational unit within DOE, for a Presidential permit to construct, connect, operate, and maintain a double-circuit 500,000-volt (500-kilovolt [kV]) electric transmission line across the United States-Mexico international border. NBR submitted a request to Western Area Power Administration (Western), another organizational unit within DOE, to interconnect the double-circuit 500-kV electric transmission line to Western's existing Gila Substation. The Applicants proposed that Western construct, own, operate, and maintain the transmission components within the United States at the Applicants' expense. Western's decision is to allow the Applicants to interconnect with its transmission system at Gila Substation, and to construct the Agency Preferred Alternative upon completion of Western's Large Generator Interconnection Procedures (LGIP) process. Accordingly, Western intends to enter into interconnection and construction agreements with NBR, and to construct, own, operate, and maintain the transmission system additions in the United States that would allow the interconnection.
Mr. John Holt, Environmental Manager, Desert Southwest Customer Service Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005, telephone (602) 605-2592; e-mail
DOE received applications from NBR and GDD to construct the portions of the San Luis Rio Colorado Project located in Yuma County, Arizona. GDD applied to OE, an organizational unit within DOE, for a Presidential permit to construct, connect, operate, and maintain a double-circuit, 500-kV electric transmission line across the United States-Mexico international border. NBR submitted a request to Western, another organizational unit within DOE, to interconnect the double-circuit 500-kV electric transmission line to Western's existing Gila Substation. The Applicants propose that Western construct, own, operate, and maintain the transmission components within the United States at the Applicants' expense.
Western and OE are the lead agencies for the San Luis Rio Colorado Environmental Impact Statement (EIS). The U.S. Department of the Navy (Navy), acting through the U.S. Marine Corps Air Station Yuma; U.S. Bureau of Land Management, (BLM); U.S. Bureau of Reclamation (Reclamation); and the City of Yuma are cooperating agencies. DOE's OE has authority over the connection of the electric transmission line at the United States-Mexico international border and will issue a separate Record of Decision (ROD) for that decision. Reclamation and the Navy will also make decisions regarding the
The Applicants proposed that within the United States, Western would construct, own, operate, and maintain double-circuit 500-kV transmission components at the Applicants' expense. The transmission components under their proposal would consist of a double-circuit 500-kV transmission line between the Point of Change of Ownership near the international border and Western's existing Gila Substation; a 500/69-kV addition adjacent to the Gila Substation; and a double-circuit 500-kV transmission line between Gila Substation and Arizona Public Service's (APS') North Gila Substation. In addition, modifications would be made to APS' North Gila Substation based on an agreement between Western and APS and would remain under operational control of APS.
The Applicants proposed a transmission corridor that would commence at the international border near the Point of Change of Ownership located immediately north of the proposed San Luis Rio Colorado (SLRC) Power Center near the intersection of Avenue 1E and County 27th, then turn northeast to the intersection of Avenue 4E and County 24th. From the intersection of Avenue 4E and County 24th, the proposed corridor would proceed north parallel to Avenue 4E, the western boundary of the Barry M. Goldwater Range (BMGR), Western's existing Gila-Sonora Transmission Line, and a portion of the Area Service Highway (ASH) to a point north of County 19th. North of County 19th, the proposed transmission line corridor would proceed northeast roughly parallel to the ASH corridor across the northwestern portion of the BMGR. At Avenue 5
The Applicants' Proposed Action was not selected as the preferred alternative due to higher impacts on flat-tailed horned lizard habitat, increased engineering constraints, and increased impacts on residences as compared with the selected alternative.
During the EIS process, Western took a broad look at the project area to determine if other viable and reasonable alternatives could be developed. Three regional corridors (West, Center, and East) were identified. These corridors were defined by two “no-go” areas—the City of Yuma high-density commercial and residential area and the adjacent Marine Corps Air Station Yuma/Yuma International Airport, and the Auxiliary Airfield No. 2 landing strip and approach zones on the BMGR. These two areas were not considered viable areas for routing a main transmission line because of unacceptably high human and environmental conflicts. The two areas defined a West Corridor, roughly parallel to the Colorado River and western Arizona-Mexico border, a Center Corridor east of Yuma and the airport and along the western boundary of the BMGR, and an East Corridor across the BMGR east of Auxiliary Airfield No. 2 and west of the Gila Mountains.
The West and East corridors were not found to be feasible. The West Corridor would result in a transmission line nearly twice as long as a Center Corridor option, with an attendant increase in environmental impacts based on length alone. The West Corridor would cross three times more irrigated cropland, impact a number of residences, and require two crossings of the Colorado River. Routing opportunities were severely constrained by residential and other development, including Yucca Powerplant and associated transmission lines, near the Colorado River west of the City of Yuma. Finally, the cost of constructing nearly twice as much transmission line, and of acquiring ROW, would make the Proposed Project economically infeasible.
The East Corridor would also be considerably longer, with associated increases in environmental impacts, and would be economically infeasible. Any transmission line located in the East Corridor would be wholly incompatible with military operations on the BMGR, and obtaining a permit from the Navy to construct a transmission line in this area would not be possible.
Western proceeded to develop alternatives to the Applicants' Proposed Action within the Center Corridor by identifying routing constraints and opportunities, balancing potential impacts, and considering public, stakeholder, and agency comments. A number of routing segments were developed and presented to the public for comment.
The Route Alternative was developed by combining the routing segments that best utilized line routing opportunities, minimized environmental impacts, and considered public and agency comments received. The transmission system components would be identical to those of the Applicants' Proposed Action, but the transmission route was adjusted in response to information developed in the EIS process, comments, and potential issues identified with the Applicants' Proposed Action.
The Route Alternative would commence at the international border near the Point of Change of Ownership located immediately north of the proposed SLRC Power Center near the intersection of Avenue 1E and County 27th, the corridor would then turn northeast for approximately 1.5 miles to the existing Gila-Sonora Transmission Line, located near the intersection of Avenue 2
Although the route identified in this alternative has fewer impacts than the Applicants' Proposed Action, this alternative was not selected in its entirety because it was determined that constructing the Proposed Project to 230-kV standards would meet the needs of the Proposed Project and result in less environmental impacts.
The 230-kV Alternative was identified because it would meet the Proposed Project objectives for transporting electric power and creating additional transmission into the Yuma area, but would result in less environmental impacts than the Applicants' Proposed Action. Under the 230-kV Alternative, the transmission system components would be constructed to 230-kV standards as opposed to 500-kV. This alternative would require 25 percent less ROW area than that required for a project constructed to 500-kV, shorter and less massive structures than a project constructed to 500-kV, and substation modifications to 230-kV standards instead of 500-kV.
Under the No Action Alternative, Western would not approve an interconnection agreement; therefore, the proposed transmission lines, substation additions and modifications, and access roads within the United States would not be constructed, and the environmental impacts associated with their construction and operation would not occur.
Western believes that the selection of the No Action Alternative would not necessarily preclude development of the SLRC Power Center, as the Applicants could construct and operate interconnection transmission lines to a Comisión Federal de Electricidad (CFE) substation within Mexico, which would allow the SLRC Power Center to be constructed, maintained, and operated solely for the purpose of serving power needs within Mexico. In this scenario, impacts from the operation of the SLRC Power Center similar to those described in the EIS would occur in the United States. This scenario is not subject to United States regulation because all of the project-related activities would occur entirely within Mexico.
The No Action Alternative was not selected because it would not meet the needs defined in the EIS. The No Action Alternative would not have allowed Western to meet its obligations defined by its own Open Access Transmission Services Tariff, which was implemented to meet the intent of the Federal Energy Regulatory Commission (FERC) order to open transmission line access (FERC Order Nos. 888 and 888-A).
After reviewing impacts for each of the alternatives, DOE identified a combination of the Route Alternative and 230-kV Alternative as the Agency Preferred Alternative. With this approach, the Proposed Project would use the route from the Route Alternative as described in the EIS, and be constructed to 230-kV standards. This combined alternative is both the Environmentally Preferred and the Agency Preferred Alternative. The Agency Preferred Alternative would include:
1. A new 21.2-mile, double-circuit, 230-kV transmission line between a Point of Change of Ownership near the international border and Western's existing Gila Substation along the Route Alternative as defined in the EIS;
2. A new 230/69-kV addition adjacent to Gila Substation as identified in the 230-kV Alternative defined in the EIS;
3. A new 4.9-mile, double-circuit, 230-kV transmission line between Gila Substation and APS's North Gila Substation along the Route Alternative as defined in the EIS (the majority of this portion of the alignment will utilize a portion of existing ROW; Western anticipates that the existing double-circuit 69-kV line will be underbuilt);
4. Modifications to North Gila Substation necessary to interconnect the 230-kV transmission lines into the substation as identified in the 230-kV Alternative defined in the EIS (these modifications will be made through an agreement with APS); and
5. Associated access roads, as needed.
In addition to the transmission system additions located within the United States, the Proposed Project has other components that include the SLRC Power Center, natural gas pipelines, and electric transmission lines all located entirely within Mexico. Western does not have any jurisdiction over these components of the Proposed Project, as they are located entirely within Mexico. While the SLRC Power Center is not subject to the United States' regulatory requirements, Western evaluated impacts within the United States from its operation as part of the impact analysis and considered the environmental ramifications of the entire project in its decision making. Western has determined that the development of the Proposed Project components within Mexico will not have significant environmental impacts within the United States based on the analyses included in the EIS.
Additional comments were received during the Final EIS waiting period that expressed concerns about property values, visual impacts, lack of notification about the Proposed Project, and potential interference with AM and FM radio, television, and “ham” radio signal reception and transmission. Property value issues were fully addressed in the EIS; potential effects generally range from somewhat positive to a negative impact of up to 15 percent. Studies find that property value impacts can be quite different from case to case, and that perceptions of impacts on value vary depending on the individual. Further, the presence of a transmission line is generally not the major determining factor of property values, and any impact generally diminishes over time.
Visual impacts are also addressed in the EIS, and are closely linked to property value concerns. The Final EIS includes an entire underground construction study to address earlier comments to bury the proposed transmission line. Like perceptions of property value impacts, visual impacts are also highly variable depending on the individual. Western conducted a visual impact analysis using the BLM Visual Resource Management (VRM) system to determine the level of visual impact. The VRM system imposes a somewhat artificial structure on very subjective visual values, and looks at visual impacts from more of a societal view. The VRM system is the best and most widely accepted tool now available for impartial analysis of visual impacts. The analysis found that visual impacts would result from constructing the Proposed Project, but that they would not be significant. Western acknowledges that some residents will consider the impact of the Proposed Project on them to be significant.
Several comments were received from residents who had not previously heard about the project, and who felt they had not had the opportunity for meaningful input. Following the Notice of Intent (NOI), Western held 12 stakeholder meetings, four public scoping meetings, and two public hearings in the Proposed Project area. The public scoping meetings were announced in the
Potential interference to radio and television reception was also addressed in the EIS. Most cases of interference are directly related to spark gap discharges due to loose, worn, or defective transmission line hardware. Western operates about 17,000 miles of transmission lines, and interference issues are rarely reported. In the unlikely event an interference problem is encountered, Western will work with the affected party to eliminate the interference.
All measures identified in the EIS to minimize impacts from the transmission system additions have been adopted. Sections 2.1.1.8 and 2.1.1.9 of the Draft EIS list Western's standard mitigation measures and additional mitigation measures included as part of the proposed action. Some of Western's standard measures include restricting vehicular traffic to existing access roads or public roads, recontouring and reseeding disturbed areas, environmental awareness training for all construction and supervisory personnel, and mitigation of radio and television interference generated by transmission lines. Additional measures identified for the Proposed Project include mitigation methods for projects within flat-tailed horned lizard habitat and measures identified in the Arizona Administrative Code pertaining to fugitive dust control to be employed during transmission line construction.
Western is the lead Federal agency for compliance with section 106 of the National Historic Preservation Act. Western's preferred form of mitigation is to avoid all identified sites. To the extent possible, cultural sites determined eligible for the National Register in consultation with the Arizona State Historic Preservation Office and interested tribes will be avoided by Proposed Project activities. Cultural sites that cannot be avoided will be mitigated in accordance with the Programmatic Agreement (PA) developed for the Proposed Project, which will govern all remaining activities necessary for section 106 compliance.
Western is also the lead Federal agency for compliance with section 7 of the Endangered Species Act, as amended. A biological assessment was prepared and submitted to the U.S. Fish and Wildlife Service (USFWS) with a determination that the Proposed Project “may affect but is not likely to adversely affect” any candidate, proposed, or listed species. In a letter dated March 26, 2007, USFWS concurred with this determination.
In accordance with 10 CFR part 1022, Western considered the potential impacts of the Proposed Project on floodplains and wetlands. The Proposed Project area is located in an arid region of low annual precipitation (less than 4 inches annually) with relatively low runoff potential, currently consisting primarily of open desert and agriculture interspersed with residences. Construction of the Proposed Project would not substantially alter the normal drainage patterns or affect runoff rates because the Proposed Project area does not typically experience runoff following a heavy rainfall due to the soils and geology of the area.
All transmission system alternatives, including the selected alternative, would traverse the 100-year floodplain of the Gila River. The Proposed Project will be designed to span the width of the 100-year floodplain; therefore, no new structures are expected to be placed within the Gila River channel or associated 100-year floodplain. Structures located adjacent to the floodplain would be constructed with additional concrete reinforcement around the footing to withstand potential flood flow-rates. The footings would not present a barrier to flood flows if they should exceed the 100-year floodplain and reach these locations. If, after final project design, additional new structures are needed in the floodplain, they will be designed to conform to applicable Federal, State, and local floodplain protection standards. No wetlands would be affected by the Proposed Project.
A Waters of the United States delineation and characterization survey was completed for the Proposed Project and the report was submitted to the U.S. Army Corps of Engineers (USACE) for review. In a letter dated March 1, 2007, USACE determined that “although the proposed project area does include jurisdictional waters, your proposed project does not discharge dredged or fill material into a water of the United States or adjacent wetland.” Therefore, the Proposed Project will not require a section 404 permit or a section 401 water quality certification.
A Mitigation Action Plan will be developed in accordance with 10 CFR 1021.331 that addresses mitigation commitments described above. The Mitigation Action Plan will explain how the mitigation will be planned and implemented and will be available upon request.
Western's decision is to allow the Applicants to interconnect with its transmission system at Gila Substation, and to construct the Agency Preferred Alternative. Western intends to enter into interconnection and construction agreements with NBR, and to construct, own, operate, and maintain the transmission system additions in the United States that would allow the interconnection. The costs of constructing, operating, and maintaining the transmission system additions would be borne by the Applicants. However, execution of the interconnection and construction agreements will not occur until the completion of Western's Large Generator Interconnection Procedures (LGIP) process. This process, which is compliant with FERC orders, takes a proposed project through feasibility studies, system impact studies, and a facilities plan, ultimately leading to identification and apportionment of costs. Assuming Western and NBR agree on the level and distribution of costs and responsibilities during the LGIP process, execution of the interconnection and construction agreements will finalize the decision described in this ROD. If for some reason Western and NBR fail to reach an accord, the no action alternative will result.
This decision is based on the information contained in the San Luis Rio Colorado Project EIS (DOE/EIS-0395; Draft EIS issued October 2006, and Final issued July 2007). This ROD has been prepared in accordance with Council on Environmental Quality regulations for implementing NEPA (40 CFR parts 1500-1508) and DOE Procedures for Implementing NEPA (10 Code of Federal Regulations [CFR] part 1021), and DOE's Floodplain/Wetland Review Requirements (10 CFR part 1022). Full implementation of this decision is contingent upon the Proposed Project obtaining all other required permits and approvals.
Environmental Protection Agency (EPA).
Notice of final order on petition to object to a state operating permit.
Pursuant to Clean Air Act Section 505(b)(2) and 40 CFR 70.8(d), the EPA Administrator signed an Order, dated August 30, 2007, partially granting and partially denying a petition to object to a state operating permit issued by the Kentucky Division for Air Quality (KDAQ) to East Kentucky Power Cooperative—Hugh L. Spurlock Generating Station (Spurlock Station) located in Maysville, Mason County, Kentucky. This Order constitutes final action on the petition submitted by Sierra Club (Petitioner). Pursuant to section 505(b)(2) of the Clean Air Act (the Act), any person may seek judicial review of the Order in the United States Court of Appeals for the appropriate circuit within 60 days of this notice under section 307(b) of the Act.
Copies of the final Order, the petition, and all pertinent information relating thereto are on file at the following location: EPA Region 4, Air, Pesticides and Toxics Management Division, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The final Order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The Act affords EPA a 45-day period to review and, as appropriate, to object to operating permits proposed by state permitting authorities under title V of the Act, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the Act and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.
Petitioner submitted a petition on August 17, 2006, requesting that EPA object to a state title V operating permit issued by KDAQ to Spurlock Station. Petitioner alleges that the permit is inconsistent with the Act for the following reasons: (1) The permit does not specify whether continuous opacity monitoring data will be available (as credible evidence) to prove a violation of the opacity standard for Unit 1; (2) the permit does not include a heat rate input limit for Unit 2; (3) the permit does not contain a compliance schedule for bringing Unit 2 into compliance with prevention of significant deterioration requirements; (4) the permit improperly omits an applicable requirement to construct and operate Unit 3 consistent with and in accordance to the specifications provided in its permit application; (5) the permit contains erroneous best available control technology (BACT) limits at Unit 3 for several pollutants; (6) the permit contains unenforceable limits related to particulate matter and hazardous air pollutant emissions from Unit 3; and (7) the permit contains erroneous BACT limits for Unit 4.
On August 30, 2007, the Administrator issued an Order partially granting and partially denying the petition. The Order explains EPA's rationale for granting the petition with respect to Issue 2 (heat rate input limit) and Issue 7 (concerning the BACT determination for sulphur dioxide and low sulfur coal at Unit 4). The Order also provides the basis for denying the petition with respect to: Issue 1 (whether continuous opacity monitoring data will be available as credible evidence); Issue 3 (compliance schedule for Unit 2); Issue 4 (omission of an applicable requirement to construct and operate Unit 3); Issue 5 (BACT limits for several pollutants at Unit 3); Issue 6 (unenforceable limits related to particulate matter and hazardous air pollutants from Unit 3); and Issue 7 (concerning the BACT determination for sulfur dioxide and coal washing, particulate matter, mercury and beryllium, and consideration of Integrated Gasification Combined Cycle technology at Unit 4).
Environmental Protection Agency (EPA).
Notice.
The U.S. Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office is announcing the formation of the Clean Air Scientific Advisory Committee (CASAC) Carbon Monoxide Review Panel (or Panel). The Panel will provide advice to the EPA Administrator regarding the primary national ambient air quality standards (NAAQS) for carbon monoxide (CO). The SAB is hereby soliciting nominations of technical experts for Panel membership.
New nominations should be submitted by November 2, 2007.
Any member of the public wishing further information regarding this Request for Nominations may contact Ms. Kyndall Barry, Designated Federal Officer (DFO), EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via telephone/voice mail: (202) 343-9868; fax: (202) 233-0643; or e-mail at:
Section 109(d)(1) of the Clean Air Act (CAA) requires that EPA carry out a periodic review and revision, as appropriate, of the air quality criteria and the NAAQS for the six “criteria” air pollutants, including CO. The current primary NAAQS for CO was first promulgated in 1971 and retained in 1985 and 1994. EPA is currently preparing to update and revise, where appropriate, the air quality criteria for CO. Information on the Agency's plans to prepare an Integrated Science Assessment (ISA) as part of the review of the NAAQS for CO is contained in a recent
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To be considered, all nominations should include: A current
(a) Current professional affiliations and positions held;
(b) Educational background, especially advanced degrees, including when and from which institutions these were granted;
(c) Area(s) of expertise, and research activities and interests relevant to the Panel; and
(d) Leadership positions in national associations or professional publications or other significant distinctions and service on other advisory committees or professional societies, especially those associated with issues under discussion in this review.
The Web form will also request information about sources of recent (i.e., within the preceding two years) grant and/or other contract support, from government, industry, academia, etc., including the topic area of the funded activity. Please note that even negative responsive information (e.g., no recent grant or contract funding) should be indicated on the biosketch (by “N/A” or “None”). Incomplete biosketches will not be considered. The EPA SAB Staff Office will acknowledge receipt of nominations.
The scientific expertise and credentials of nominees received in reply to this notice will be reviewed for demonstrative experience in the disciplines sought for the CO Review Panel. Qualified nominees will be included in a smaller subset (known as the “Short List”). The Short List will be posted on the SAB Web site at:
For the EPA SAB Staff Office, a balanced subcommittee or review panel includes candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. In establishing the final CO Review Panel, the SAB Staff Office will consider public responses to the Short List, information provided by candidates, and background information independently-gathered by the SAB Staff Office on each candidate (
Prospective candidates will also be required to fill-out the “Confidential Financial Disclosure Form for Special Government Employees Serving on Federal Advisory Committees at the U.S. Environmental Protection Agency” (EPA Form 3110-48). This confidential form allows Government officials to determine whether there is a statutory conflict between that person's public responsibilities (which includes membership on an EPA Federal advisory committee) and private interests and activities, or the appearance of a lack of impartiality, as defined by Federal regulation. The form may be viewed and downloaded from the following URL address:
The approved policy under which the EPA SAB Office selects subcommittees and review panels is described in the following document:
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 6, 2007 (72 FR 17156).
EPA expressed environmental objections to the open loop re-gasification system due to immediate and cumulative adverse impacts to waters and habitat. EPA recommends that the final EIS explore ways to incorporate the identified closed-loop submerged combustion vaporization and to further consider ambient air technology for re-heating the imported gas.
EPA expressed environmental concerns about the proposed alternatives on issues related to GE organism Regulation, Permit Conditions, Interstate Movement and Shipping Standards. EPA requested additional information, data and analysis in the Final PEIS on the proposed alternatives for these issues.
EPA expressed environmental objections to the proposed project due to its high potential to violate water quality standards. EPA requests additional stormwater analysis necessary to more fully describe potential impacts and to facilitate a discussion of mitigation measures. EPA also requests additional analysis of impacts to wetland resources and the potential for secondary development impacts associated with the commercial/industrial development that the project is intended to catalyze.
EPA expressed environmental concerns about air quality impacts.
EPA has no objections to the proposed action.
EPA expressed environmental concerns about the effectiveness of various mitigation measures to address adverse impacts from continued operation of Pilgrim over the relicensing period. EPA also continues to believe that more detailed information should be provided to describe the impacts of relicensing, to examine alternative operating modes, technologies, and mitigation measures.
EPA continues to express concerns about entrainment and impingement of fish and other aquatic organisms and impact from thermal discharge.
While most of EPA's previous issues have been resolved, EPA continues to have environmental concerns about the water quality monitoring program.
EPA continues to have environmental concerns about impacts to biological resources and continues to recommend additional compensation for these impacts.
EPA has no objection to the proposed action.
Environmental Protection Agency (EPA).
Notice of meeting.
Under the Federal Advisory Committee Act (Pub. L. 92-463), EPA gives notice of a meeting of the Gulf of Mexico Program (GMP) Policy Review Board Meeting (PRB). For information on access or services for individuals with disabilities, please contact Gloria Car, U.S.EPA, at (228) 688-2421 or
The meeting will be held on Wednesday, November 14, 2007, from 9 a.m. to 3 p.m.
The meeting will be held at the Sheraton Tampa Riverwalk, 200 North Ashley Drive, Tampa, FL 33602, (813) 223-2222.
Gloria D. Car, Designated Federal Officer, Gulf of Mexico Program Office, Mail Code EPA/GMPO, Stennis Space Center, MS 39529-6000 at (228) 688-2421.
The proposed agenda includes the following topics: State Leadership Team Updates; Gulf Hypoxia Updates; Binational Harmful Algal Bloom Observing Systems Initiative Updates; Policy Innovations for a More Resilient Coastal Ecology & Economy; Status of the Gulf of Mexico Coastal Ecosystem Learning Center Network Development; 2007 Gulf Guardian Awards; Integrating the Gulf of Mexico Border: Challenges and Opportunities; Gulf of Mexico Coalition Report: 2008 Support Strategy; and 2007 Program Accomplishments Report.
The meeting is open to the public.
Environmental Protection Agency (EPA).
Notice; meeting announcement.
This notice announces the Fifteenth Public Meeting of the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force. The purpose of this Task Force, consisting of federal and state members, is to lead efforts to coordinate and support nutrient management and hypoxia-related activities in the Mississippi River and Gulf of Mexico watersheds. The matter for discussion at the meeting is the Reassessment of the Action Plan for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico. The Plan was developed in fulfillment of a requirement of section 604(b) of the Harmful Algal Blooms and Hypoxia Research Control Act (Pub. L. 105-383—Coast Guard Authorization Act of 1998) and was submitted as a Report to Congress on January 18, 2001. The public will be afforded an opportunity to provide input to the Task Force during open discussion periods.
The public meeting will be held on October 29, 2007, from 1-5 p.m. EST.
The meeting is located at Westin Cincinnati, 21 East Fifth Street, Cincinnati, OH 45202. Telephone: (513) 621-7700. Additional information and meeting materials can be found at
For registration and other information contact Kristen Goodrich, U.S. EPA, Oceans and Coastal Protection Division (OCPD), Mail Code 4504T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; Phone (202) 566-1284; E-mail:
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's Reregistration Eligibility Decision (RED) for the N-methyl carbamate pesticide aldicarb, and opens a public comment period on this document. The Agency's risk assessments and other related documents also are available in the aldicarb Docket. Aldicarb is a restricted use systemic insecticide, acaricide and nematicide used to control various insect species, including nematodes. Aldicarb is registered for use on agricultural crops including citrus, cotton, dry beans, peanuts, pecans, potatoes, sorghum, soybeans, sugar beets, sugarcane, sweet potatoes, and seed alfalfa (CA). In addition, aldicarb may be applied to field grown ornamentals (CA) and tobacco, and on coffee grown in Puerto Rico. There are no aldicarb products intended for sale to homeowners or for use in residential settings. EPA has reviewed aldicarb through the public participation process that the Agency uses to involve the
Comments must be received on or before December 11, 2007.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2005-0163, by one of the following methods:
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Anne Overstreet, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8068; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. EPA has completed a RED for the N-methyl carbamate pesticide, aldicarb under section 4(g)(2)(A) of FIFRA. Aldicarb is a restricted use systemic insecticide, acaricide and nematicide used to control various insect species. Aldicarb is registered for
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
The reregistration program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. The Agency is issuing the aldicarb RED for public comment. This comment period is intended to provide an additional opportunity for public input and a mechanism for initiating any necessary amendments to the RED. All comments should be submitted using the methods in
The Agency will carefully consider all comments received by the closing date and will provide a Response to Comments Memorandum in the Docket and regulations.gov. If any comment significantly affects the document, EPA also will publish an amendment to the RED in the
Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration, before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This Notice is a Federal Agency announcement of the triennial national enforcement and compliance assurance priorities to be addressed for fiscal years 2008, 2009 and 2010. EPA appreciates the comments submitted in March 2007 during the priority identification process in response to the February 9, 2007
Christopher Knopes, Deputy Director, National Planning Measures and Analysis Staff; telephone: (202) 564-2337 or facsimile: (202) 564-0027, e-mail address:
EPA's Office of Enforcement and Compliance Assurance (OECA) selects multi-year national priorities focusing on specific environmental problems, risks, or patterns of noncompliance. A performance based strategy is developed for each national priority to characterize the problem and set goals for addressing it. The intent of this Notice is to announce EPA's enforcement and compliance assurance priorities for the years 2008-2010.
The FY 2008-2010 OECA national priorities are shown below.
• Clean Water Act—Stormwater.
• Clean Water Act—Combined Sewer Overflow.
• Clean Water Act—Sanitary Sewer Overflow.
• Clean Water Act—Concentrated Animal Feeding Operations.
• Clean Air Act—New Source Review/Prevention of Significant Deterioration.
• Clean Air Act—Air Toxics.
• RCRA & CERCLA—Financial Assurance.
• RCRA—Mineral Processing.
• Indian Country.
The FY 2005-2007 Petroleum Refining priority will not continue into FY 2008-2010 as a national priority. The priority has met its primary goal of addressing 80% of the national refining capacity and was returned to the core program at the end of FY 2006. It is important to note that discontinuation as a national priority does not mean that the Agency will no longer focus on this area, but rather the work will continue as part of the Agency's core program activities.
For each of the national priority areas, EPA has developed a strategy designed to achieve specific goals. The strategy summaries included here contain a description of the environmental problem or noncompliance problem; why the Office of Enforcement and Compliance Assurance is addressing the problem; how the problem will be addressed; and, highlights the progress made by the priorities for fiscal year 2005 through 2007. The strategy
Annual results information for the Office of Enforcement and Compliance Assurance can be found on EPA's Web page at:
Annual results information for fiscal year 2007 will be available on November 16, 2007.
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The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before November 13, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, (202) 395-5887, or via fax at 202-395-5167 or via Internet at
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
The recordkeeping requirements contained in 47 CFR 80.409 is necessary to document the operation and public correspondence service of public coast radiotelegraph, public coast radiotelephone, stations and Alaska-public fixed stations, ship radiotelegraph, ship radiotelephone and applicable radiotelephone, including the logging of distress and safety calls where applicable. The information is used by FCC personnel during inspection and investigations to ensure compliance with applicable rules and to assist in accident investigations. If the information was not collected, documentation concerning the operation of public coast radiotelegraph stations, public coast radiotelephone stations and Alaska-public fixed stations would not be available.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collections pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13. 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 control number. For further information, contact Nicole Ongele, Federal Communications Commission, (202) 418-2991 or via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995 (PRA), Public Law No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Subject to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before December 11, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Cathy Williams at (202) 418-2918 or send an e-mail to
The operator of every cable television system having 1,000 or more subscribers but fewer than 5,000 subscribers shall, upon request, provide the information required by Sections 76.1702, 76.1703, 76.1704, 76.1706 and 76.1715. These cable television systems shall also maintain for public inspection a file containing a copy of all records required to be kept by 47 CFR Section 76.1701.
The operator of every cable television system having 5,000 or more subscribers shall maintain for public inspection a file containing a copy of all records which are required to be kept by §§ 76.1701, 76.1702, 76.1703, 76.1704, 76.1706, and 76.1715. 47 CFR 76.1700(b) requires that the public inspection file shall be maintained at the office which the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business or at any accessible place in the community served by the system unit(s) (such as a public registry for documents or an attorney's office). The public inspection file shall be available for public inspection at any time during regular business hours.
47 CFR 76.1700(d) requires the records specified in paragraph 76.1700(a) be retained for the period specified in §§ 76.1701, 76.1702, 76.1704(a), and 76.1706. 47 CFR 76.1703 requires that cable operators airing children's programming must maintain records sufficient to verify compliance with 47 CFR Section 76.225 and make such records available to the public. Such records must be maintained for a period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B).
47 CFR 76.1704(a) requires the proof of performance tests required by Section 76.601 shall be maintained on file at the operator's local business office for at least five years. The test data shall be made available for inspection by the Commission or the local franchiser, upon request.
47 CFR 76.1704(b) requires the provisions of § 76.1704(a) shall not apply to any cable television system having fewer than 1,000 subscribers.
47 CFR 76.1707 requires that if a cable operator adopts and enforces a written policy regarding indecent leased access programming pursuant to Section 76.701, such a policy will be considered published pursuant to that rule by inclusion of the written policy in the operator's public inspection file.
47 CFR 76.1711 requires that records be kept of each test and activation of the Emergency Alert System (EAS) procedures pursuant to the requirement of 47 CFR Part 11 and the EAS Operating Handbook. These records shall be kept for three years.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before December 11, 2007. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, (202) 395-5887, or via fax at 202-395-5167 or via internet at
For additional information or copies of the information collection(s), contact Judith B. Herman at 202-418-0214 or via the Internet at
OMB Control Number: 3060-0221.
All stations authorized under this part, except as provided in section 90.629, 90.631(f), 90.665, 90.685, and 90.1209, must be placed in operation within twelve (12) months from the date of grant or the authorization cancels automatically and must be returned to the Commission. This requirement will be used by Commission personnel in evaluating if the applicant's need for an exception to the 12-month requirement is warranted.
Part 22 of the Commission's rules contain the technical and legal requirements for radio stations operating in the Public Mobile Services. The information collected is used to determine on a case-by-case basis, whether or not to grant licenses authorizing construction and operation of wireless telecommunications facilities to common carriers. Further, this information is used to develop statistics about the demand for various wireless licenses and/or the licensing process itself, and occasionally for rule enforcement purposes.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:30 a.m. on Tuesday, October 16, 2007, the Federal Deposit Insurance Corporation's Board of Directors will meet in closed session, pursuant to section 552b(c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (9)(B), and (c)(10), Title 5, United States Code, to consider matters
The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550 17th Street, NW., Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-7122.
Federal Housing Finance Board.
Notice.
The Federal Housing Finance Board (Finance Board) is announcing the Federal Home Loan Bank (Bank) members it has selected for the 2006-07 seventh quarter review cycle under the Finance Board's community support requirements regulation. This notice also prescribes the deadline by which Bank members selected for review must submit Community Support Statements to the Finance Board.
Bank members selected for the review cycle under the Finance Board's community support requirements regulation must submit completed Community Support Statements to the Finance Board on or before November 30, 2007.
Bank members selected for the 2006-07 seventh quarter review cycle under the Finance Board's community support requirements regulation must submit completed Community Support Statements to the Finance Board either by regular mail at the Federal Housing Finance Board, Office of Supervision, Community Investment and Affordable Housing, 1625 Eye Street, NW., Washington, DC 20006, or by electronic mail at
Emma J. Fitzgerald, Program Analyst, Office of Supervision, Community Investment and Affordable Housing, by telephone at 202/408-2874, by electronic mail at
Section 10(g)(1) of the Federal Home Loan Bank Act (Bank Act) requires the Finance Board to promulgate regulations establishing standards of community investment or service Bank members must meet in order to maintain access to long-term advances.
Under the rule, the Finance Board selects approximately one-eighth of the members in each Bank district for community support review each calendar quarter. 12 CFR 944.2(a). The Finance Board will not review an institution's community support performance until it has been a Bank member for at least one year. Selection for review is not, nor should it be construed as, any indication of either the financial condition or the community support performance of the member.
Each Bank member selected for review must complete a Community Support Statement and submit it to the Finance Board by the November 30, 2007 deadline prescribed in this notice. 12 CFR 944.2(b)(1)(ii) and (c). On or before October 26, 2007, each Bank will notify the members in its district that have been selected for the 2006-07 seventh quarter community support review cycle that they must complete and submit to the Finance Board by the deadline a Community Support Statement. 12 CFR 944.2(b)(2)(i). The member's Bank will provide a blank Community Support Statement Form, which also is available on the Finance Board's Web site:
Upon request, the member's Bank also will provide assistance in completing the Community Support Statement.
The Finance Board has selected the following members for the 2006-07 seventh quarter community support review cycle:
To encourage the submission of public comments on the community support performance of Bank members, on or before the October 26, 2007, each Bank will notify its Advisory Council and nonprofit housing developers, community groups, and other interested parties in its district of the members selected for community support review in the 2006-07 seventh quarter review cycle. 12 CFR 944.2(b)(2)(ii). In reviewing a member for community support compliance, the Finance Board will consider any public comments it has received concerning the member. 12 CFR 944.2(d). To ensure consideration by the Finance Board, comments concerning the community support performance of members selected for the 2006-07 seventh quarter review cycle must be delivered to the Finance Board on or before the November 30, 2007 deadline for submission of Community Support Statements.
Announcement of meeting.
This notice announces the 20th meeting of the American Health Information Community Population Health and Clinical Care Connections Workgroup [formerly Biosurveillance Workgroup] in accordance with the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.)
November 30, 2007, from 1 p.m. to 4 p.m. [Eastern Time].
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090 (please bring photo ID for entry to a Federal building).
The Workgroup will continue its discussion on how to facilitate the flow of reliable health information among population health and clinical care systems necessary to protect and improve the public's health.
The meeting will be available via Web cast. For additional information, go to:
Part A, Office of the Secretary (OS), Chapter AC, Office of Public Health and Science (OPHS), of the Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services (60 FR 56605-06, November 9, 1995), as previously amended at 60 FR 471-3, January 4, 1995, and 58 FR 107, January 4, 1993, is amended to reflect the realignment of the functions within the Office on Women's Health (OWH), OPHS, to provide a critically needed management substructure to assist the Director in the planning, coordination, and operation of the OWH.
The changes are as follows:
I. Under Chapter AC, Office of Public Health and Science, Section AC.20 Functions, delete paragraph B, “Office on Women's Health (ACB),” in its entirety, and replace with the following:
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Plans and directs financial management activities, including budget
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II. Under Chapter AC, Office of Public Health and Science, Section AC.20 Functions, at the end of Paragraph A, “Immediate Office (ACA),” add the following statement:
(19) Provide administrative and management support to the President's Council on Bioethics.
The Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and National Institutes of Health (NIH) announce an open meeting concerning antimicrobial resistance.
1. Surveillance.
2. Prevention and Control.
3. Research.
4. Product Development.
Comments and suggestions from the consultants for updates of specific action items in the Action Plan or addition of new action items in these topics will be taken under advisement by the Task Force. The Task Force may also utilize other sources of information in updating the Action Plan. The agenda does not include development of consensus positions, guidelines, or discussions or endorsements of specific commercial products. Agenda items are subject to change as priorities dictate. Limited time will be available for oral comments and suggestions from the public. Written comments and suggestions from the public are encouraged and should be received by the contact person listed below by December 3, 2007.
Persons anticipating attending the meeting are requested to send written notification by December 3, 2007, including name, organization (if applicable), address, phone, fax, and email addresses to the contact below.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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The information will be collected under the solicitation of proposals from PDP, MA-PD, Cost Plan, and Employer Group Waiver Plans applicants. The collected information will be used by CMS to: (1) Insure that applicants meet CMS requirements, and (2) support the determination of contract awards.
Refer to the “High-Level Summary of Changes in Employer/Union Group Waiver Plan Part D Applications” and “High-Level Summary of All Part D Application Revisions from 2008 Solicitation for the 2009 Solicitation” documents to review a list of changes from 2008 to 2009;
3.
The main purpose of the NHVBP data collection effort is to gather information that will enable CMS to determine which nursing homes will be eligible to receive incentive payments under the NHVBP Demonstration. All measures included in the MDS outcomes, survey deficiency, and appropriate hospitalization domains can be calculated from existing secondary data sources, such as the MDS, annual nursing home certification surveys, and Medicare claims data. However, for the staffing domain, no satisfactory alternative source for these data has been identified. Therefore, CMS will collect payroll-based staffing and resident census information to help assess the quality of care in participating nursing homes. CMS will additionally collect data on two measures, staff immunization status and use of resident care experience surveys, which may be included in the payment determination during the second and third years of the demonstration. Refer to the “Summary of Changes to Data collection for the Nursing Home Value-Based Purchasing (NHVBP) Demonstration” documents to review a list of changed items.
4.
5.
We are proposing revisions to the CMS-855B to incorporate changes adopted in CMS-1321-FC (71 FR 69624), “Revisions to Payment Policies and Five-Year Review of Relative Value Units Under the Physician Fee Schedule for CY 2007 and Other Changes to Payment Under Part B; Revisions to Ambulance Fee Schedule; Ambulatory Inflation Factor Update for CY 2007.” Specifically, CMS is revising the CMS-855B to:
• Add instructions to Attachment 2 that explain the independent diagnostic testing facility (IDTF) liability insurance requirements in 42 CFR § 410.33(g)(6).
• Require that an IDTF submit copies of its comprehensive liability insurance policy in Section 17.
• List all of the new IDTF standards on a separate page in Attachment 2.
• Remove the supplier type “Voluntary Health/Charitable Agency” from Section 2A.
In addition, we are trying to enhance our ability to identify whether a hospital qualifies as a “specialty hospital.” To this end, we propose to revise the CMS-855A to include a specific box that specialty hospitals must check when completing the application. Instructions explaining the definition of a “specialty hospital” will also be added to the form. We also provide clarification of the term “primary practice location” in the instructions in Section 4 of the CMS-855A. This clarification does not change any data elements on the form. We are also removing the data element “Medicare Year-End Cost Report Date” in Section 2 of the CMS-855A, as this information is no longer needed.
6.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB Human Resources and Housing Branch, Attention: Carolyn Lovett, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families; Department of Health and Human Services.
Single-Source Permanent Replacement Grant.
Jan P. Shafer, Children's Bureau, Portals Building, Suite 800, 1250 Maryland Avenue, SW., Washington, DC 20024. Telephone: 202-205-8172.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing the fee rates and payment procedures for medical device user fees for fiscal year (FY) 2008. The Federal Food, Drug, and Cosmetic Act (the act), as amended by the Medical Device User Fee and Modernization Act of 2002 (MDUFMA), the Medical Device User Fee Stabilization Act of 2005 (MDUFSA), and the Medical Device User Fee Amendments of 2007 (Title II of the Food and Drug Administration Amendments Act of 2007 (FDAAA)), authorizes FDA to collect user fees for certain medical device submissions, and annual fees both for certain periodic reports and for certain establishments subject to registration. The FY 2008 fee rates are provided in this notice. These fees apply from October 1, 2007, through September 30, 2008. To avoid delay in the review of your application, you should pay the fee before or at the time you submit your application to FDA. The fee you must pay is the fee that is in effect on the later of the date that your application is received by FDA or the date your fee payment is received. If you want to pay a reduced small business fee, you must qualify as a small business before you make your submission to FDA; if you do not qualify as a small business before you make your submission to FDA, you will have to pay the higher standard fee. This notice provides information on how the fees for FY 2008 were determined, the payment procedures you should follow, and how you may qualify for reduced small business fees.
Section 738 of the act (21 U.S.C. 379j) establishes fees for certain medical device applications, submissions, supplements, and notices (for simplicity, this notice refers to these collectively as “submissions”); for periodic reporting on class III devices; and for the registration of certain establishments. Under statutorily defined conditions, a qualified applicant may receive a fee waiver or may pay a lower small business fee (see 21 U.S.C. 379j(d) and (e)).
Under the act, the fee rate for each type of submission is set at a specified percentage of the standard fee for a premarket application (a premarket application is a premarket approval application (PMA), a product development protocol (PDP), or a biologics licensing application (BLA)). The act specifies the standard fee for a premarket application for each year from FY 2008 through FY 2012; the standard fee for a premarket application received by FDA during FY 2008 is $185,000. From this starting point, this notice establishes FY 2008 fee rates for other types of submissions, and for periodic reporting, by applying criteria specified in the act.
The act specifies the annual fee for establishment registration for each year from FY 2008 through FY 2012; the registration fee for FY 2008 is $1,706. There is no reduction in the registration fee for small businesses. An establishment must pay the annual registration fee if it is any of the following types of establishments:
•
•
•
The fees for FY 2008 go into effect on October 1, 2007, and will remain in effect through September 30, 2008.
Under the act, all submission fees and the periodic reporting fee are set as a percent of the standard (full) fee for a premarket application (see 21 U.S.C. 379j(a)(2)(A)), and the act sets the standard fee for a premarket application at $185,000 for FY 2008 (see 21 U.S.C. 379j(b); this is referred to as the “base fee”). The fees set by reference to the base (see 21 U.S.C. 379j(a)(2)(A)) fee are—
• For a panel-track supplement, 75 percent of the base fee;
• For a 180-day supplement, 15 percent of the base fee;
• For a real-time supplement, 7 percent of the base fee;
• For a 30-day notice, 1.6 percent of the base fee;
• For a 510(k) premarket notification, 1.84 percent of the base fee;
• For a 513(g) request for classification information, 1.35 percent of the base fee; and
• For an annual fee for periodic reporting concerning a class III device, 3.5 percent of the base fee.
For all submissions other than a 510(k) premarket notification, a 30-day notice, and a 513(g) request for classification information, the small business fee is 25 percent of the standard (full) fee (see 21 U.S.C. 379j(d)(2)(C)). For a 510(k) premarket notification submission, a 30-day notice, and a 513(g) request for classification information, the small business fee is 50 percent of the standard (full) fee (see 21 U.S.C. 379j(e)(2)(C) and (d)(2)(C), respectively). There is no small business rate for annual establishment registration fee; all establishments pay the same fee. Table 1 of this document sets out the FY 2008 rates for all medical device fees.
If your business has gross receipts or sales of no more than $100 million for the most-recent tax year, you may qualify for reduced small business fees. If your business has gross sales or receipts of no more than $30 million, you may also qualify for a waiver of the fee for your first premarket application (PMA, PDP, or BLA) or premarket report. You must include the gross receipts or sales of all of your affiliates along with your own gross receipts or sales when determining whether you meet the $100 million or $30 million threshold. If you want to pay the small business fee rate for a submission, or you want to receive a waiver of the fee for your first premarket application or premarket report, you should submit the materials showing you qualify as a small business 60 days before you send your submission to FDA. If you make a submission before FDA finds that you qualify as a small business, you must pay the standard fee for that submission.
If your business qualified as a small business for FY 2007, your status as a small business will expire at the close of business on September 30, 2007. You must re-qualify for FY 2008 in order to pay fees at the small business rate during FY 2008.
If you are a domestic (U.S.) business, and wish to qualify as a small business for FY 2008, you must submit the following to FDA:
(1) A completed FY 2008 MDUFMA Small Business Qualification Certification (Form FDA 3602). This form is provided in FDA's guidance document “FY 2008 Medical Device User Fee Small Business Qualification and Certification,” available on FDA's Web site at
(2) A certified copy of your Federal (U.S.) Income Tax Return for the most recent tax year (2006 or later).
(3) For each of your affiliates, either—
If you are a foreign business, and wish to qualify as a small business for FY 2008, you must submit the following:
(1) A completed FY 2008 MDUFMA Foreign Small Business Qualification Certification (Form FDA 3602A). This form is provided in FDA's guidance document “FY 2008 Medical Device User Fee Small Business Qualification and Certification,” available on FDA's Web site at
(2) A National Taxing Authority Certification, completed by, and bearing the official seal of, the National Taxing Authority of the country in which the firm is headquartered. This certification must show the amount of gross receipts or sales for the most recent tax year, in
(3) For each of your affiliates, either—
If your application or submission is subject to a fee and is received by FDA from October 1, 2007, through September 30, 2008, you must pay the fee in effect for FY 2008. The later of the date that the application or annual report is received in the reviewing center's document room or the date that the check is received by US Bank determines whether the fee rates for FY 2007 or FY 2008 apply. FDA must receive the correct fee at the time that an application or annual report is submitted, or the application or annual report will not be accepted for filing or review.
FDA requests that you follow the steps in this section before submitting a medical device application or annual report subject to a fee. Please pay close attention to these procedures to ensure that FDA links the fee with the correct application. (Note: In no case should the check for the fee be submitted to FDA with the application.)
Log onto the MDUFMA Web site at
Once you are satisfied that the data on the cover sheet is accurate, electronically transmit that data to FDA according to instructions on the screen. Because electronic transmission is possible, applicants are required to set up a user account and use passwords to assure data security in the creation and electronic submission of cover sheets.
• Make the payment in U.S. currency by check, bank draft, or U.S. Postal money order payable to the Food and Drug Administration. (FDA's tax identification number is 53-0196965, should your accounting department need this information.)
• Please write your application's unique Payment Identification Number, from the upper right-hand corner of your completed Medical Device User Fee Cover Sheet, on your check, bank draft, or U.S. Postal money order.
• Mail the payment and a copy of the completed Medical Device User Fee Cover Sheet to: Food and Drug Administration, P.O. Box 956733, St. Louis, MO 63195-6733. (Please note that this address is for payments of application and annual report fees only and is not to be used for payment of annual establishment registration fees.)
If you prefer to send a check by a courier (such as FEDEX, DHL, UPS, etc.), the courier may deliver the check to: US Bank, Attn: Government Lockbox 956733, 1005 Convention Plaza, St. Louis, MO 63101. (Note: This address is for courier delivery only. Contact the US Bank at 314-418-4821 if you have any questions concerning courier delivery.)
It is helpful if the fee arrives at the bank at least 1 day before the application arrives at FDA. FDA records the official application receipt date as the later of the following:
• The date the application was received by FDA.
• The date US Bank receives the payment. US Bank is required to notify FDA within 1 working day, using the Payment Identification Number described previously.
Please submit your application and a copy of the completed Medical Device User Fee Cover Sheet to one of the following addresses:
• Medical device applications should be submitted to: Food and Drug Administration, Center for Devices and Radiological Health, Document Mail Center (HFZ-401), 9200 Corporate Blvd., Rockville, MD 20850.
• Biologic applications should be sent to: Food and Drug Administration, Center for Biologics Evaluation and Research, Document Control Center (HFM-99), suite 200N, 1401 Rockville Pike, Rockville, MD 20852-1448.
Procedures for paying annual establishment fees are different from the previously mentioned procedures for paying application, submission, and annual report fees. An establishment is not legally registered in FY 2008 until it has both completed the following steps to register and paid any fee that may be applicable (see 21 U.S.C. 379j(f)(2)).
Log onto CDRH's Web site at
Once you obtain your account ID and password, you will enter them and log into FURLS. From the FURLS/FDA Industry Systems menu, there will be a button that you will click to go to the Device Registration and Listing Module (DRLM) of FURLS. New establishments will register their establishment and existing establishments will re-register their establishments using choices on the DRLM menu. Once you make your selection—either Register a Facility or Annual Re-registration—the system will prompt you through the entry of information about your establishment and your devices.
If you have any problems with this process you may call 240-276-0111 for assistance. (Note: This phone number is for assistance with establishment registration and establishment fee payment only, and not for any other aspects of medical device user fees.)
After you enter your establishment registration information into the system, you will be informed whether or not the payment of an annual registration fee is required to complete your registration (these fees are only required for device manufacturers, single-use re-processors, and specification developers as stated in section I of this document). If your establishment is subject to a fee, you will be given a summary sheet that: (1) Tells you what your payment options are and (2) leads you to a link for your specific invoice, which will be available on-line as a portable document format (PDF) file that you should print copies of; one to submit with your payment (if not submitted electronically) and the other to keep for your records.
Make the payment, if required, in U.S. currency. The summary page will include payment information that may permit you the option of paying electronically. If that option is provided, you may follow the instructions provided to make payment electronically. If that option is not provided, or you choose not to make your payment electronically, you may pay by check.
Your check, made in U.S. dollars and drawn on a U.S. bank, can be mailed to: Food and Drug Administration, P.O. Box 70961, Charlotte, NC 28272-0961. (Please note that this is different than the address for payments of application and annual report fees and is to be used only for payment of annual establishment registration fees.)
If checks are to be sent by a courier that requests a street address, the courier can deliver the checks to: Wachovia Bank, Attn: Food and Drug Administration—Lockbox 70961, rm. NC0810, 1525 West WT Harris Blvd., Charlotte, NC 28262. (Note: This Wachovia Bank address is for courier delivery only; do not send mail to this address.)
Please make sure that the FDA post office box number (P.O. Box 70961) is written on the check, along with the invoice number printed on your invoice. A copy of your printed invoice should also be mailed in the same envelope with your check. FDA's tax identification number is 53-0196965.
Wire transfers may also be used to pay annual establishment fees. The routing and transit number is 021030004 and the account number is 75060099. The invoice number should also be included with any wire transfer information, to assure that the invoice is properly credited.
FDA is in the process of implementing alternate Web-based payment methods, and the option of electronic payment may not be immediately available for FY 2008 payments. For more information on these payment options and when they will be available, please visit FDA's Web site at
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA), Center for Biologics Evaluation and Research and Center for Devices and Radiological Health, and the National Institute of Standards and Technology are announcing a public workshop entitled: In Vitro Analysis of Cell/Scaffold Medical Products. The purpose of the public workshop is to discuss issues that should be considered when evaluating cell/scaffold medical products and to determine which test methods are currently available and which new analytical procedures should be further researched for the evaluation of cell/scaffold medical products.
If you need special accommodations due to a disability, please contact Bernadette Kawaley (see
The public workshop will feature presentations by experts from the medical field and the government. The first day of the workshop will include discussions on in vitro assays of product performance. The second day of the workshop will include discussions on tools for quantifying the response of cells and tissues.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the rates for prescription drug user fees for fiscal year (FY) 2008. The Federal Food, Drug, and Cosmetic Act (the act), as amended by the Prescription Drug User Fee Amendments of 2007 (Title 1 of the Food and Drug Administration Amendments Act of 2007 (FDAAA)) (PDUFA IV), authorizes FDA to collect user fees for certain applications for approval of drug and biological products, on establishments where the products are made, and on such products. Base revenue amounts to be generated from PDUFA fees were established by PDUFA IV, with provisions for certain adjustments. Fee revenue amounts for applications, establishments, and products are to be established each year by FDA so that one-third of the PDUFA fee revenues FDA collects each year will be generated from each of these categories. This notice establishes fee rates for FY 2008 for application fees for an application requiring clinical data ($1,178,000), for an application not requiring clinical data or a supplement requiring clinical data ($589,000), for establishment fees ($392,700), and for product fees ($65,030). These fees are effective on October 1, 2007, and will remain in effect through September 30, 2008. For applications and supplements that are submitted on or after October 1, 2007, the new fee schedule must be used. Invoices for establishment and product fees for FY 2008 will be issued in October 2007, using the new fee schedule.
Yanming Chae, Office of Financial Management (HFA-120), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-5042.
Sections 735 and 736 of the act (21 U.S.C. 379g and h), establish three different kinds of user fees. Fees are assessed on the following: (1) Certain types of applications and supplements for approval of drug and biological products, (2) certain establishments where such products are made, and (3) certain products (21 U.S.C. 379h(a)). When certain conditions are met, FDA may waive or reduce fees (21 U.S.C. 379h(d)).
For FY 2008 through FY 2012, the base revenue amounts for the total revenues from all PDUFA fees are established by PDUFA IV. The base revenue amount for FY 2008 is to be adjusted for workload, and that adjusted amount becomes the base amount for the remaining 4 FYs. That adjusted base revenue amount is subject to further adjustments for inflation and workload each year. Fees for applications, establishments, and products are to be established each year by FDA so that revenues from each category will provide one-third of the total revenue to be collected each year.
This notice establishes the fee base revenue amount for FY 2008 after adjustment for workload, and then establishes the application, establishment, and product fees for FY 2008. These fees are effective on October 1, 2007, and will remain in effect through September 30, 2008.
The total fee revenue amount for FY 2008 is $459,412,000, based on the fee revenue amount specified in the statute, including additional fee funding for drug safety and adjusted for inflation and changes in workload. The statutory amounts and these adjustments are described in the following paragraphs. Section II.A of this document provides the fee amounts specified in the statute. Section II.B of this document describes the one-time base adjustment to the statutory fee revenue amount under the FY 2007 method. Section II.C of this document describes the inflation adjustment to the adjusted fee revenue base amount. Section II.D of this document describes the workload adjustment to the inflation-adjusted fee revenue amount.
PDUFA IV specifies that the fee revenue amount for FY 2008 for all fees is $417,783,000 ($392,783,000 specified in 21 U.S.C. 379h(b)(1) plus an additional $25,000,000 for drug safety specified in 21 U.S.C. 379h(b)(4)).
The statute specifies that $354,893,000 of the amount specified in 21 U.S.C. 379h(b)(1) is to be further adjusted for workload. The workload adjustment on this amount is to be made in accordance with the workload adjustment provisions that were in effect for FY 2007, except that the adjustment for investigational new drug (IND) workload is based on the number of INDs with a submission in the previous 12 months rather than on the number of new commercial INDs submitted in the same 12-month period.
For each FY beginning in FY 2004, the Prescription Drug User Fee Amendments of 2002 (PDUFA III) provided that fee revenue amounts, after they had been adjusted for inflation, should be further adjusted to reflect changes in workload for the process for the review of human drug applications (see 21 U.S.C. 379h(c)(2)).
The conference report accompanying PDUFA III, House of Representatives Report number 107-481, provides guidance on how the workload adjustment provision of PDUFA III is to be implemented. Following that guidance, FDA calculated the average number of each of the four types of applications specified in the workload adjustment provision (human drug applications, commercial IND applications, efficacy supplements, and manufacturing supplements) received over the 5-year period that ended on June 30, 2002 (base years), and the average number of each of these types of applications over the most recent 5-year period that ended June 30, 2007. PDUFA IV directs that this same method be used in making the workload adjustment apply to the 2008 statutory revenue amount, except that for this calculation the number of commercial IND applications with a submission in the previous 12 months is used for each 12-month period rather than the number of commercial IND applications submitted (see 21 U.S.C. 379h(b), as amended by PDUFA IV).
The results of these calculations are presented in the first two columns of table 1 of this document. Column 3 reflects the percent change in workload over the two 5-year periods. Column 4 shows the weighting factor for each type of application, estimating how much of the total FDA drug review workload was accounted for by each type of application in the table during the most recent 5 years. Column 5 of table 1 of this document is the weighted percent change in each category of workload. This was derived by multiplying the weighting factor in each line in column 4 by the percent change from the base years in column 3. At the bottom right of the table the sum of the values in column 5 is added, reflecting a total increase in workload of 11.73 percent when compared to the base years.
Increasing the PDUFA IV statutorily-specified amount of $354,893,000 by the specified workload adjuster (11.73 percent) results in an increase of $41,629,000, rounded to the nearest thousand. Adding this amount to the $417,783,000 statutorily-specified amount, before adjustment, results in a total adjusted PDUFA IV base revenue amount of $459,412,000. This figure is the adjusted PDUFA IV base revenue amount that will be adjusted in future years for inflation and workload.
PDUFA IV provides that fee revenue amounts for each FY after 2008 shall be adjusted for inflation. Since no inflation adjustment is applicable in FY 2008, no further adjustment is made to the revenue amount derived in section II.B of this document.
For each FY beginning in FY 2009, PDUFA IV provides that fee revenue amounts, after they have been adjusted for inflation, shall be further adjusted to reflect changes in workload for the process for the review of human drug applications (see 21 U.S.C. 379h(c)(2)). Because no further workload adjustment, other than the adjustment to the base amount in section II.B of this document, is applicable in FY 2008, no further adjustment is made to the revenue amount derived in section II.B of this document.
PDUFA IV provides that the rates for application, product, and establishment fees be established so that they will generate the fee revenue amounts specified in the statute, as adjusted for inflation and workload.
The application fee revenue amount that PDUFA IV establishes for each year is one third of the total adjusted fee revenue amount. The total fee revenue amount for FY 2008 is $459,412,000, as calculated in section II.B of this document. Application fees will be set to generate one-third of this amount, or $153,137,000, rounded to the nearest $1,000, in FY 2008.
For FY 2008 through FY 2012, FDA will estimate the total number of fee-paying full application equivalents (FAEs) it expects to receive the next FY by averaging the number of fee-paying FAEs received in the 5 most recent FYs. This use of the rolling average of the 5 most recent FYs is the same method that was applied during PDUFA III.
In estimating the number of fee-paying FAEs that FDA will receive in FY 2008, the 5-year rolling average for the most recent 5 years will be based on actual counts of fee-paying FAEs received for FY 2003 through FY 2007. For FY 2007, FDA is estimating the number of fee-paying FAEs for the full year based on the actual count for the first 9 months and estimating the number for the final 3 months, as we have done for the past 5 years.
Table 2 of this document shows in column 1 the total number of each type of FAE received in the first 9 months of FY 2007, whether fees were paid or not. Column 2 shows the number of FAEs for which fees were waived or exempted during this period, and column 3 shows the number of fee-paying FAEs received through June 30, 2007. Column 4 estimates the 12-month total fee-paying FAEs for FY 2007 based on the applications received through June 30, 2007. All of the counts are in FAEs. A full application requiring clinical data counts as one FAE. An application not requiring clinical data counts as one-half an FAE, as does a supplement requiring clinical data. An application that is withdrawn, or refused for filing, counts as one-fourth of an FAE if the applicant initially paid a full application fee, or one-eighth of an FAE if the applicant initially paid one-half of the full application fee amount.
In the first 9 months of FY 2007, FDA received 122.7 FAEs, of which 95.4 were fee-paying. Based on data from the last 8 FYs, on average, 25 percent of the applications submitted each year come in the final 3 months. Dividing 95.4 by 3 and multiplying by 4 extrapolates the amount to the full 12 months of the FY and projects the number of fee-paying FAEs in FY 2007 at 127.2.
As table 3 of this document shows, the average number of fee-paying FAEs received annually in the most recent 5-year period, and including our estimate for FY 2007, is 130 FAEs. FDA will set fees for FY 2008 based on this estimate as the number of FAEs that will pay fees.
The FY 2008 application fee is estimated by dividing the average number of full applications that paid fees over the latest 5 years, 130, into the fee revenue amount to be derived from application fees in FY 2008, $153,137,000. The result, rounded to the nearest $100, is a fee of $1,178,000 per full application requiring clinical data, and $589,000 per application not requiring clinical data or per supplement requiring clinical data.
At the beginning of FY 2007, the establishment fee was based on an estimate that 375 establishments would be subject to, and would pay, fees. By the end of FY 2007, FDA estimates that 425 establishments will have been billed for establishment fees, before all decisions on requests for waivers or reductions are made. As in previous years, FDA again estimates that a total of 25 establishment fee waivers or reductions will be made for FY 2007. In addition to the previous year estimates, FDA estimates that another 10 full establishment fees will be exempted this year based on the new orphan drug exemption in FDAAA (see 21 U.S.C. 379h(k)). Subtracting 35 (25 plus the estimated 10 establishments under the new orphan exemption) establishments from 425 leaves a net of 390 fee-paying establishments. FDA will use 390 for its FY 2008 estimate of establishments paying fees, after taking waivers and reductions into account. The fee per establishment is determined by dividing the adjusted total fee revenue to be derived from establishments ($153,137,000 by the estimated 390 establishments, for an establishment fee rate for FY 2008 of $392,700 (rounded to the nearest $100).
At the beginning of FY 2007, the product fee was based on an estimate that 2,400 products would be subject to and pay product fees. By the end of FY 2007, FDA estimates that 2,425 products will have been billed for product fees, before all decisions on requests for waivers or reductions are made. FDA assumes that there will be about 40 waivers and reductions granted, the same amount estimated last year. In addition to the previous year estimates, FDA estimates that another 30 product fees will be exempted this year based on the new orphan drug exemption in FDAAA (see 21 U.S.C. 379h(k)). FDA estimates that 2,355 products will qualify for product fees in FY 2007, after allowing for waivers and reductions, including the orphan drug products eligible under the new FDAAA exemption, and will use this number for its FY 2008 estimate. Accordingly, the FY 2008 product fee rate is determined by dividing the adjusted total fee revenue to be derived from product fees ($153,137,000) by the estimated 2,355 products for a FY 2008 product fee of $65,030 (rounded to the nearest $10).
The fee rates for FY 2008 are set out in table 4 of this document:
The appropriate application fee established in the new fee schedule must be paid for any application or supplement subject to fees under PDUFA that is received after September 30, 2007. Payment must be made in U.S. currency by check, bank draft, or U.S. postal money order payable to the order of the Food and Drug Administration. Please include the user fee ID number on your check. Your payment can be mailed to: Food and Drug Administration, P.O. Box 70963, Charlotte, NC 28272-0963.
If checks are to be sent by a courier that requests a street address, the courier can deliver the checks to: Wachovia Bank, Attn: Food and Drug Administration Lockbox 70963, 1525 West WT Harris Blvd., rm. NC0810, Charlotte, NC 28262. (Note: This Wachovia Bank address is for courier delivery only.)
Please make sure that the FDA post office box number (P.O. Box 70963) is written on the check. The tax identification number of the Food and Drug Administration is 53-0196965.
Wire transfer payment may also be used. The routing and transit number is 021030004 and the account number is 75060099. Please include, as the reference, the NDA/BLA number and the user fee ID number.
FDA is in the process of implementing alternate Web-based payment methods. For more information on these payment options and when they will be available, please visit FDA's Web site at
FDA will issue invoices for establishment and product fees for FY 2008 under the new fee schedule in October 2007. Payment will be due 30 days from the date of the invoice. FDA will issue invoices in November 2008 for any products and establishments subject to fees for FY 2008 that qualify for fees after the October 2007 billing.
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Joyce A. Strong, Office of Policy (HF-27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-7010.
In FR Doc. E7-19578, appearing on page 56771 in the
1. On page 56771, in the third column, in the heading of the document, “[Docket No. 2007N-0309]” is corrected to read “[Docket No. 2007D-0309]”.
Health Resources and Services Administration, HHS.
Extension of requests for comments deadline.
The Health Resources and Services Administration published a notice in the
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies Federal agencies of the laboratories currently certified to meet the standards of Subpart C of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
A notice listing all currently certified laboratories is published in the
If any laboratory has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end, and will be omitted from the monthly listing thereafter.
This notice is also available on the Internet at
Mrs. Giselle Hersh or Dr. Walter Vogl, Division of Workplace Programs, SAMHSA/CSAP, Room 2-1035, 1 Choke Cherry Road, Rockville, Maryland 20857; 240-276-2600 (voice), 240-276-2610 (fax).
The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. Subpart C of the Mandatory Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct drug and specimen validity tests on urine specimens for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (Formerly: HHS/NIDA) which attests that it has met minimum standards.
In accordance with Subpart C of the Mandatory Guidelines dated April 13, 2004 (69 FR 19644), the following laboratories meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
ACL Laboratories, 8901 W. Lincoln Ave., West Allis, WI 53227, 414-328-7840/800-877-7016. (Formerly: Bayshore Clinical Laboratory)
ACM Medical Laboratory, Inc., 160 Elmgrove Park, Rochester, NY 14624, 585-429-2264.
Advanced Toxicology Network, 3560 Air Center Cove, Suite 101, Memphis, TN 38118, 901-794-5770/888-290-1150.
Aegis Sciences Corporation, 345 Hill Ave., Nashville, TN 37210, 615-255-2400. (Formerly: Aegis Analytical Laboratories, Inc.)
Baptist Medical Center-Toxicology Laboratory, 9601 I-630, Exit 7, Little Rock, AR 72205-7299, 501-202-2783. (Formerly: Forensic Toxicology Laboratory Baptist Medical Center)
Clinical Reference Lab, 8433 Quivira Road, Lenexa, KS 66215-2802, 800-445-6917.
Diagnostic Services, Inc., dba DSI, 12700 Westlinks Drive, Fort Myers, FL 33913, 239-561-8200/800-735-5416.
Doctors Laboratory, Inc., 2906 Julia Drive, Valdosta, GA 31602, 229-671-2281.
DrugScan, Inc., P.O. Box 2969, 1119 Mearns Road, Warminster, PA 18974, 215-674-9310.
Dynacare Kasper Medical Laboratories,* 10150-102 St., Suite 200, Edmonton, Alberta, Canada T5J 5E2, 780-451-3702/800-661-9876.
ElSohly Laboratories, Inc., 5 Industrial Park Drive, Oxford, MS 38655, 662-236-2609.
Gamma-Dynacare Medical Laboratories,* A Division of the Gamma-Dynacare Laboratory Partnership, 245 Pall Mall Street, London, ONT, Canada N6A 1P4, 519-679-1630.
Kroll Laboratory Specialists, Inc., 1111 Newton St., Gretna, LA 70053, 504-361-8989 / 800-433-3823. (Formerly: Laboratory Specialists, Inc.)
Kroll Laboratory Specialists, Inc., 450 Southlake Blvd., Richmond, VA 23236, 804-378-9130. (Formerly: Scientific Testing Laboratories, Inc.; Kroll Scientific Testing Laboratories, Inc.)
Laboratory Corporation of America Holdings, 7207 N. Gessner Road, Houston, TX 77040, 713-856-8288/800-800-2387.
Laboratory Corporation of America Holdings, 69 First Ave., Raritan, NJ 08869, 908-526-2400/800-437-4986. (Formerly: Roche Biomedical Laboratories, Inc.)
Laboratory Corporation of America Holdings, 1904 Alexander Drive, Research Triangle Park, NC 27709, 919-572-6900/800-833-3984. (Formerly: LabCorp Occupational Testing Services, Inc., CompuChem Laboratories, Inc.; CompuChem Laboratories, Inc., A Subsidiary of Roche Biomedical Laboratory; Roche CompuChem Laboratories, Inc., A Member of the Roche Group)
Laboratory Corporation of America Holdings, 13112 Evening Creek Drive, Suite 100, San Diego, CA 92128, 858-668-3710/800-882-7272. (Formerly: Poisonlab, Inc.)
Laboratory Corporation of America Holdings, 550 17th Ave., Suite 300, Seattle, WA 98122, 206-923-7020/800-898-0180. (Formerly: DrugProof, Division of Dynacare/Laboratory of Pathology, LLC; Laboratory of Pathology of Seattle, Inc.; DrugProof, Division of Laboratory of Pathology of Seattle, Inc.)
Laboratory Corporation of America Holdings, 1120 Main Street, Southaven, MS 38671, 866-827-8042/800-233-6339. (Formerly: LabCorp Occupational Testing Services, Inc.; MedExpress/National Laboratory Center)
LabOne, Inc. d/b/a Quest Diagnostics, 10101 Renner Blvd., Lenexa, KS 66219, 913-888-3927 / 800-873-8845. (Formerly: Quest Diagnostics Incorporated; LabOne, Inc.; Center for Laboratory Services, a Division of LabOne, Inc.)
Marshfield Laboratories, Forensic Toxicology Laboratory, 1000 North Oak Ave., Marshfield, WI 54449, 715-389-3734/800-331-3734.
MAXXAM Analytics Inc.,* 6740 Campobello Road, Mississauga, ON, Canada L5N 2L8, 905-817-5700. (Formerly: NOVAMANN (Ontario), Inc.)
MedTox Laboratories, Inc., 402 W. County Road D, St. Paul, MN 55112, 651-636-7466/800-832-3244.
MetroLab-Legacy Laboratory Services, 1225 NE 2nd Ave., Portland, OR 97232, 503-413-5295/800-950-5295.
Minneapolis Veterans Affairs Medical Center, Forensic Toxicology Laboratory, 1 Veterans Drive, Minneapolis, MN 55417, 612-725-2088.
National Toxicology Laboratories, Inc., 1100 California Ave., Bakersfield, CA 93304, 661-322-4250/800-350-3515.
One Source Toxicology Laboratory, Inc., 1213 Genoa-Red Bluff, Pasadena, TX 77504, 888-747-3774. (Formerly: University of Texas Medical Branch, Clinical Chemistry Division; UTMB Pathology-Toxicology Laboratory)
Oregon Medical Laboratories, 123 International Way, Springfield, OR 97477, 541-341-8092.
Pacific Toxicology Laboratories, 9348 DeSoto Ave., Chatsworth, CA 91311, 800-328-6942. (Formerly: Centinela Hospital Airport Toxicology Laboratory)
Pathology Associates Medical Laboratories, 110 West Cliff Dr., Spokane, WA 99204, 509-755-8991/800-541-7891x7.
Phamatech, Inc., 10151 Barnes Canyon Road, San Diego, CA 92121, 858-643-5555.
Physicians Reference Laboratory, 7800 West 110th St., Overland Park, KS 66210, 913-339-0372/800-821-3627.
Quest Diagnostics Incorporated, 3175 Presidential Dr., Atlanta, GA 30340, 770-452-1590/800-729-6432. (Formerly: SmithKline Beecham Clinical Laboratories; SmithKline Bio-Science Laboratories)
Quest Diagnostics Incorporated, 400 Egypt Road, Norristown, PA 19403, 610-631-4600/877-642-2216. (Formerly: SmithKline Beecham Clinical Laboratories; SmithKline Bio-Science Laboratories)
Quest Diagnostics Incorporated, 7600 Tyrone Ave., Van Nuys, CA 91405, 866-370-6699 818-989-2521. (Formerly:
S.E.D. Medical Laboratories, 5601 Office Blvd., Albuquerque, NM 87109, 505-727-6300 / 800-999-5227.
South Bend Medical Foundation, Inc., 530 N. Lafayette Blvd., South Bend, IN 46601, 574-234-4176 x276.
Southwest Laboratories, 4645 E. Cotton Center Boulevard, Suite 177, Phoenix, AZ 85040, 602-438-8507 / 800-279-0027.
Sparrow Health System, Toxicology Testing Center, St. Lawrence Campus, 1210 W. Saginaw, Lansing, MI 48915, 517-364-7400. (Formerly: St. Lawrence Hospital & Healthcare System)
St. Anthony Hospital Toxicology Laboratory, 1000 N. Lee St., Oklahoma City, OK 73101, 405-272-7052.
Toxicology & Drug Monitoring Laboratory, University of Missouri Hospital & Clinics, 301 Business Loop 70 West, Suite 208, Columbia, MO 65203, 573-882-1273.
Toxicology Testing Service, Inc., 5426 N.W. 79th Ave., Miami, FL 33166, 305-593-2260.
U.S. Army Forensic Toxicology Drug Testing Laboratory, 2490 Wilson St., Fort George G. Meade, MD 20755-5235, 301-677-7085.
The following laboratory will be voluntarily withdrawing from the HHS National Laboratory Certification Program on October 12, 2007:
Meriter Laboratories, 36 South Brooks St., Madison, WI 53715, 608-267-6225. (Formerly: General Medical Laboratories)
*The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Information Network (HSINAC) Advisory Committee will meet on October 31, 2007, in Potomac, MD. The meeting will be open to the public.
The HSINAC will meet Wednesday, October 31, 2007, from 9 a.m. to 4:30 p.m. and on Thursday, November 1, 2007, from 8:30 a.m. to 12 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at Bolger Center, 9600 Newbridge Drive, Potomac, MD 20854-4436. Send written material, comments, and requests to make oral presentations to Elliott Langer, Department of Homeland Security, 245 Murray Lane, SW., Bldg 410, Washington, DC 20528. Written materials, comments, and requests to make oral presentations at the meeting should reach the contact person listed below by October 20, 2007. Requests to have a copy of your material distributed to each member of the committee prior to the meeting should reach the contact person at the address below by October 20, 2007. Comments must be identified by DHS-2007-0069 and may be submitted by
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Elliott Langer, 245 Murray Lane, SW., Bldg 410, Washington, DC 20528,
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The mission of the HSINAC is to identify issues and provide independent advice and recommendations for the improvement of HSIN to senior leadership of the Department, in particular the Director of Operations Coordination. The agenda for the first meeting will consist of a briefing on the development of HSIN and identifying overarching strategic issues concerning HSIN development as well as user operational requirements. In addition, discussions will provide an opportunity for initial discussion to identify issues and concerns held by state, local, tribal and private sector users.
This meeting is open to the public. Please note that the meeting may close early if all business is finished.
Participation in HSINAC deliberations is limited to committee members, Department of Homeland Security officials, and persons invited to attend the meeting for special presentations.
All visitors to Bolger Center will have to pre-register to be admitted to the building. Please provide your name, telephone number by close of business on October 20, 2007, to Elliott Langer (202-282-8978) (
For information on facilities or services for individuals with disabilities or to request special assistance at the
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-1709-DR), dated June 29, 2007, and related determinations.
October 5, 2007.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following area among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of June 29, 2007.
Gonzales County for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Texas (FEMA-1730-DR), dated October 2, 2007, and related determinations.
October 2, 2007.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that, in a letter dated October 2, 2007, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as follows:
I have determined that the damage in certain areas of the State of Texas resulting from Tropical Storm Erin during the period of August 14-20, 2007, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act). Therefore, I declare that such a major disaster exists in the State of Texas.
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Individual Assistance in the designated areas, Hazard Mitigation throughout the State, and any other forms of assistance under the Stafford Act that you deem appropriate. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation and Other Needs Assistance will be limited to 75 percent of the total eligible costs.
If Public Assistance is later requested and warranted, Federal funds provided under that program also will be limited to 75 percent of the total eligible costs, except for any particular projects that are eligible for a higher Federal cost-sharing percentage under the FEMA Public Assistance Pilot Program instituted pursuant to 6 U.S.C. 777.
Further, you are authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Kenneth Clark, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
I do hereby determine the following areas of the State of Texas to have been affected adversely by this declared major disaster:
Bexar, Harris, Jones, Kendall, Medina, and Taylor Counties for Individual Assistance.
All counties within the State of Texas are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Extension of comment period.
The Federal Emergency Management Agency (FEMA) is extending the comment period on the revised National Response Plan now known as the National Response Framework (NRF). The NRF was drafted to build upon the current National Response Plan, incorporate lessons-learned from recent disasters, and to articulate more clearly the roles of the States, tribal, and local jurisdictions and the private sector to guide a successful response to natural disasters or terrorist
This notice is effective October 5, 2007. Comments must be received by October 22, 2007.
The NRF is available online in the NRF Resource Center located at
FEMA has also provided a form, available in the docket at
Andrew Slaten, Acting National Response Framework Branch Chief, Federal Emergency Management Agency, 999 E Street, NW., Washington, DC 20463, 202-646-8152.
On September 11, 2007, (72 FR 51833), FEMA published a notice of availability and request for comments on the National Response Framework (NRF). FEMA has since received requests to extend the comment period. In order to accommodate these requests and to provide additional opportunities for public comment, FEMA is providing notice that it will continue to accept comments on the NRF until October 22, 2007.
The NRF is available online in the NRF Resource Center located at
Homeland Security Act of 2002, as amended, 6 U.S.C. 101,
National Communications System, DHS.
Notice of Partially Closed Advisory Committee Meeting.
The President's National Security Telecommunications Advisory Committee (NSTAC) will be meeting by teleconference: the meeting will be partially closed.
Thursday, November 8, 2007, from 2 p.m. until 3 p.m.
The meeting will take place by teleconference. For access to the conference bridge and meeting materials, contact Ms. Sue Daage at (703) 235-5526 or by e-mail at
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Ms. Kiesha Gebreyes, Chief, Industry Operations Branch at (703) 235-5525, e-mail:
NSTAC advises the President on issues and problems related to implementing national security and emergency preparedness telecommunications policy. Notice of this meeting is given under the Federal Advisory Committee Act (FACA), Public Law 92-463 (1972), as amended appearing in 5 U.S.C. App. 1
At the upcoming meeting, between 2 p.m. and 2:25 p.m., the conference call will include government stakeholder feedback on NSTAC initiatives and an overview of NSTAC's investigation of identity management and emergency communications interoperability for national security and emergency preparedness communications. This portion of the meeting will be open to the public.
Between 2:25 p.m. and 3 p.m., the committee will discuss and vote on the results of their investigation of the global network infrastructure environment, and will also discuss and vote on the results of their investigation of commercial systems' reliance on global positioning systems for network timing synchronization. This portion of the meeting will be closed to the public.
Persons with disabilities who require special assistance should indicate this when arranging access to the teleconference and are encouraged to identify anticipated special needs as early as possible.
Pursuant to section 10(d) of FACA, the Department has determined that this discussion will likely reveal trade secrets or financial information obtained from private parties which is privileged or confidential. Pursuant to section 10(d) of FACA, the Department has also determined that this discussion will concern matters which, if disclosed, would be likely to frustrate significantly the implementation of a proposed agency action. Accordingly, the relevant portion of this meeting will be closed to the public pursuant to 5 U.S.C. 552b(c)(4) and 552b(c)(9)(B) (1976), applied through 5 U.S.C. App. 1
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the U.S. Fish and Wildlife Service, announce the availability of the Recovery Plan for
Copies of the final recovery plan are available by request from the following offices: U.S. Fish and Wildlife Service, Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Suite 368, Boise, Idaho 83709 (telephone: 208-378-5243; fax: 208-378-5262); U.S. Fish and Wildlife Service, Helena Field Office, 585 Shepard Way, Helena, Montana 59601 (telephone: 406-449-5225; fax: 406-449-5339); U.S. Fish and Wildlife Service, La Grande Field Office, 3502 Highway 30, La Grande, Oregon 97850 (telephone: 541-962-8584; fax: 541-962-8581); and U.S. Fish and Wildlife Service, Upper Columbia Fish and Wildlife Office, 11103 East Montgomery Drive, Suite 2, Spokane, Washington 99206 (telephone: 509-891-6839; fax: 509-891-6748). Requests for copies of the document should be addressed to the Field Supervisor at the above offices. An electronic copy of the recovery plan will also be made available online at
Steve Duke, Division Chief, at the above Boise address (telephone: 208-387-5345; e-mail:
Restoring endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of our endangered species program. The Endangered Species Act (16 U.S.C. 1531,
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The objective of this recovery plan is to recover
The authority for this action is section 4(f) of the Endangered Species Act, 16 U.S.C. 1533(f).
Fish and Wildlife Service, Interior.
Notice of availability and receipt of application.
The Agua Caliente Band of Cahuilla Indians (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The Service is requesting public comment on the Draft Agua Caliente Tribal Habitat Conservation Plan (THCP), Draft Implementing Agreement, and Draft Environmental Impact Statement (EIS). The Applicant is requesting a permit for 24 species, seven of which are currently listed as threatened or endangered under the Act. Of these 24 species, the Applicant requests a permit and assurances for 15 animal species that are not currently listed and assurances for two plant species. The permit is needed to authorize incidental take of listed animal species (including harm, injury, and harassment) due to development and certain other activities in the approximately 35,871-acre (56-square mile) Plan Area in the Coachella Valley of Riverside County, California.
Written comments must be received on or before January 10, 2008.
Send written comments to Mr. Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92011. You may also submit comments by facsimile to 760-431-9624.
Ms. Therese O'Rourke, Assistant Field Supervisor, at the Carlsbad Fish and Wildlife Office above; telephone 760-431-9440.
Documents available for public review include the permit application, the Public Review Draft THCP and Appendices, the accompanying Draft Implementing Agreement, and the Draft EIS.
Individuals wishing to obtain copies of the documents should contact the Service by telephone at 760-431-9440, or by letter to the Carlsbad Fish and Wildlife Office (see
(1) Palm Springs City Library: 300 South Sunrise Way, Palm Springs, CA 92262.
(2) Rancho Mirage Public Library: 71100 Highway 111, Rancho Mirage, CA 92270.
(3) Cathedral City Branch Library: 33520 Date Palm Drive, Cathedral City, CA 92234.
(4) Desert Hot Springs Branch Library: 11691 West Drive, Desert Hot Springs, CA 92240.
Section 9 of the Act and Federal regulation prohibit the “take” of fish and wildlife species federally listed as endangered or threatened. Take of federally listed fish or wildlife is defined under the Act to include kill, harm, or harass. Harm includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering (50 CFR 17.3(c)). Under limited circumstances, the Service may issue permits to authorize incidental take; that is, take that is incidental to, and not the purpose of, otherwise lawful activity. Although take of plant species is not prohibited under the Act, and therefore cannot be authorized under an incidental take permit, plant species are proposed to be included on the permit in recognition of the conservation benefits provided to them under the THCP. Regulations governing incidental take permits for threatened and endangered species are found in 50 CFR 17.22 and 17.32, respectively.
The applicant seeks an incidental take permit for 24 species, nine of which are currently listed as threatened or endangered under the Act. Proposed covered species include four wildlife species listed as endangered under the Act [Peninsular bighorn sheep (
The THCP is intended to protect and sustain viable populations of native plant and animal species and their habitats in perpetuity through the creation of a reserve system, while accommodating continued economic development and quality of life for residents in the Plan Area. The 2000 U.S. Census determined that
The THCP Plan Area encompasses approximately 35,871 acres in the Coachella Valley within the vicinity of the following three incorporated cities: Cathedral City, Palm Springs, and Rancho Mirage. Specifically, the Plan Area encompasses sections of land in a checkerboard pattern with lands included in the Coachella Valley Area Government's draft Multiple Species Habitat Conservation Plan. The THCP Plan Area encompasses both Reservation (i.e., Tribal Trust Land, Allotted Trust Land, and Fee Land) and other off-Reservation lands held by the applicant and is one of three large habitat planning efforts in Riverside County.
As described in the Draft THCP and the Draft EIS, the proposed THCP would provide for the creation of a reserve system that protects and manages up to approximately 19,375 acres of habitat for the Covered Species. The proposed reserve system will be established from lands within the Plan Area as well as lands outside the current Plan Area (identified as the Action Area in the THCP) and within a priority system encompassing seven conservation areas that are either adjacent or linked by biological corridors. The acquisition program for the reserve system, involving conservation of a maximum of 19,375 acres, is anticipated to occur over the life of the permit. When completed, the reserve system will include core habitat for Covered Species, essential ecological processes, and biological corridors and linkages to provide for the conservation of the proposed Covered Species.
The THCP includes measures to avoid, minimize, and mitigate incidental take of the Covered Species, emphasizing project design modifications to protect both habitats and species' individuals where appropriate. A monitoring and reporting plan would gauge the Plan's success based on achievement of biological goals and objectives and would ensure that conservation keeps pace with development. The THCP also includes a management program, including adaptive management, which allows for changes in the conservation program if the biological species objectives are not met, or new information becomes available to improve the efficacy of the THCP conservation strategy. Covered Activities would include public and private development conducted by the applicant, Tribal members, or non-Federal third parties within the Plan Area that requires certain ministerial and discretionary actions by the applicant subject to consistency with THCP policies.
The Draft EIS analyzes three other alternatives in addition to the proposed THCP Preferred Project Alternative described above including: A No Action Alternative in which the applicant and Bureau of Indian Affairs would continue to seek incidental take authorizations on a project-by-project basis, as necessary, resulting in a piece-meal approach to habitat conservation; an alternative that includes implementing the 2002-approved THCP without a section 10(a) permit resulting in less conservation; and, an expanded conservation alternative that includes additional Peninsular bighorn sheep habitat impact avoidance.
The Service and the applicant invite the public to comment on the Draft THCP, Draft Implementing Agreement, and Draft EIS during a 90-day public comment period beginning the date of this notice. 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 may 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.
This notice is provided pursuant to section 10(a) of the Act and Service regulations for implementing the National Environmental Policy Act (NEPA). The Service will evaluate the application, associated documents, and comments submitted thereon to prepare a Final to the draft EIS. A permit decision will be made no sooner than 30 days after the publication of the Final EIS and completion of the Record of Decision.
Bureau of Land Management, Interior.
Notice of Availability of the Draft Environmental Impact Statement (DEIS) for the Moxa Arch Area Infill Gas Development Project, Kemmerer, Wyoming.
In accordance with the National Environmental Policy Act (NEPA) of 1969 as amended, and the Federal Land Policy and Management Act of 1976, the Bureau of Land Management (BLM) announces the availability of the Moxa Arch Area Infill Gas Development Project DEIS. The DEIS analyzes the environmental consequences of a proposed natural gas development and production operation on the 475,808 acre Moxa Arch project area.
The DEIS will be available for public review and comment for 60 calendar days starting on the date the Environmental Protection Agency (EPA) publishes their Notice of Availability in the
A copy of the DEIS has been sent to affected Federal, State, and local government agencies and to interested parties. The document will be available electronically on the following Web site:
If you are interested in viewing material referenced or posted to the BLM Web site, please contact the Kemmerer Field Office as to its availability. Copies of the DEIS will be available for public inspection at the following locations:
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82009; and
• Bureau of Land Management, Kemmerer Field Office, 312 Highway 189 North, Kemmerer, Wyoming 83101.
Michele Easley, Project Lead, BLM Kemmerer Field Office, 312 Highway 189 North, Kemmerer, Wyoming 83101, or by telephone at (307) 828-4524. Requests for information also may be sent electronically to:
The area is located within the administrative jurisdiction of the BLM Kemmerer Field Office, Townships 15 through 23 North (T15-23N), Ranges 111 through 113 West (R111-113W), 6th Principal Meridian, west of Green River, Wyoming, east of Lyman and Opal, Wyoming, and south of the Green River and Fontenelle Reservoir. Interstate 80 (I-80) bisects the southern third of the Project Area.
EOG Resources, Inc. (EOG) and other companies (Operators) propose to expand the existing natural gas drilling and field development operations on BLM-administered Federal, state, and private lands in the Moxa Arch Area of southwestern Wyoming. The Operators propose to drill up to 1,861 new wells from 1,861 new well pads over a 10-year period. Wells would be drilled to the Frontier and Dakota formations at depths of 11,000 to 12,000 feet. The Life-of-Project is expected to be 40 to 60 years and the wells would be drilled at densities ranging from 4-12 wells per square mile. Of the 1,861 wells, 695 would be drilled from lands administered by the BLM, Bureau of Reclamation, and U.S. Fish and Wildlife Service. The remaining 1,166 wells would be drilled from private lands, or lands administered by the State of Wyoming.
The BLM published its Notice of Intent to prepare an EIS for the Moxa Arch Area Infill Gas Development Project in the
The current identified range of alternatives will allow the BLM to select a management strategy that will meet project objectives, while providing adequate environmental protection. During scoping and alternatives development, few public comments were received. The BLM is seeking additional public input, and has not identified a preferred alternative at this time. The DEIS analyzes four alternatives in detail:
• The Proposed Action Alternative: The construction of well pads, access roads, pipelines, and other ancillary facilities (gas processing plant, compressor stations, etc.) for projected development of 1,861 natural gas wells;
• Alternative A (No Action): Development of approximately 757 new wells would continue under the 1997 Record of Decision for the Expanded Moxa Arch Area Natural Gas Development Project EIS;
• Alternative B: Development would occur as in the Proposed Action, but would apply additional Best Management Practices to reduce impacts on sensitive resources; and
• Alternative C: Development of 5,165 new wells and well pads throughout the Moxa Arch gas field (densities ranging from 4-16 wells per square mile).
Comments may be submitted as follows:
1. Electronically mailed to
2. Written comments may be mailed or delivered to the BLM at: Moxa Arch DEIS, Project Manager, Bureau of Land Management Kemmerer Field Office, 312 Highway 189 North, Kemmerer, WY 83101.
The BLM will only accept comments on the Moxa Arch DEIS if they are submitted using one of the methods described above. All comment submittals must include the commenter's name and street address.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of extension of comment period for the Northeast National Petroleum Reserve—Alaska Draft Supplemental Integrated Activity Plan/Environmental Impact Statement.
The Bureau of Land Management (BLM) announces an extension of the comment period on the Northeast National Petroleum Reserve—Alaska Draft Supplemental Integrated Activity Plan/Environmental Impact Statement (IAP/EIS). The original notice issued August 24, 2007, provided for a comment period to end on October 23, 2007. The BLM is extending the comment period to November 6, 2007.
Jim Ducker, BLM Alaska State Office, 907-271-3130.
The Notice of Availability published in the
Bureau of Land Management, Interior.
Notice of availability.
Pursuant to section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, a Draft EIS has been prepared by the Bureau of Land Management (BLM), Ely Field Office, for the Toquop Energy Project and is now available for comment. This document evaluates the environmental effects from constructing a 750-megawatt (MW) coal-fired electric power generating plant and associated features on public lands in Lincoln County, Nevada.
The Draft EIS is now available for comment. Copies of the Draft EIS will be mailed to individuals, agencies, or companies who previously requested copies. Mailed comments on the Draft EIS must be postmarked by December 11, 2007. Written comments on the document should be addressed to Jane Peterson, Project Manager/Energy, Bureau of Land Management, Ely Field Office, HC 33 Box 33500, Ely, Nevada 89301-9408. Comments may also be faxed to (775) 289-1910. Oral and/or written comments may also be presented at four public meetings. These public meetings will be held in St. George, Utah, and Caliente, Mesquite, Las Vegas, and Reno, Nevada. The date, time, and location will be made available at least 15 days before the meetings.
Public reading copies of the Draft EIS will be available for reading at the locations listed below:
A limited number of copies of the document will be available at the following BLM offices:
You may submit comments on the Draft EIS by any of the following methods:
• Mail: Jane Peterson, Project Manager/Energy, Bureau of Land Management, Ely Field Office, HC 33 Box 33500, Ely, NV 89301-9408.
• Fax: 775-289-1910.
Brenda Linnell at the above address, or by telephone: 775-289-1808.
The Draft EIS addresses alternatives to resolve the following major issues: air quality, visual resources, biological resources, and socioeconomic effects. On June 15 and June 28, 2001, Toquop Energy Inc., filed applications for Federal Land Policy and Management Act rights-of-way and a temporary use permit to construct and operate a 1,100 MW gas-fired power plant to be located in southeast Lincoln County. The rights-of-way included: (1) The power plant site; (2) gas pipeline, overhead power line, and access road from the main road to the power plant site; (3) a water pipeline; (4) an access road from Interstate 15 to the proposed project site; (5) a water pipeline, electrical line and well field access road running from the proposed power plant site to a terminus point in the proposed well field site in the Tule Desert Area; and (6) a well field in the Tule Desert area, and an associated water pump station and equalizer tank. In 2003, the BLM prepared an EIS to examine the impacts of this request. The EIS evaluated three alternatives: (1) Granting the requested rights-of-way for a northern site; and (2) granting the rights-of-way for a southern site (preferred alternative) and (3) a No Action alternative, not granting the requested rights-of-way. The BLM granted Toquop Energy Inc., the rights-of-way and temporary use permit in December 2003. The 2003 EIS considered several project and right-of-way alternatives, including the use of alternative fuels in lieu of a gas-fired power plant. These alternative were eliminated from detailed analysis in the EIS because project economics did not support such alternatives at the time the EIS was issued. However, recent change in market conditions, driven by the ever higher and volatile prices of natural gas, makes alternative fuels more desirable and economically viable. The BLM has now completed necessary studies, and prepared a draft EIS to re-evaluate the alternative of constructing a 750 MW coal-fired power plant in lieu of an 1,100 MW gas-fired power plant, as well as to analyze the proposal to grant a new railroad right-of-way connecting the project site to the existing Union Pacific Railway near Leith, Nevada. The scope of the draft EIS is limited to evaluating the alternative of constructing a 750 MW coal plant and the new railroad access right-of-way, and subsequent disposal of the power plant site.
Public participation is occurring throughout the processing of this project application. A Notice of Intent was published in the
Bureau of Land Management, Alaska State Office, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Alaska Resource Advisory Council will meet as
The meeting will be held November 13-14, 2007, at the Westmark Fairbanks Hotel and Conference Center, 813 Noble Street, Fairbanks, Alaska. The November 13 meeting begins at 1 p.m. and the November 14 meeting starts at 8 a.m. The council will accept public comment on November 14 at 10 a.m.
The public may give verbal comments on agenda items during the public comment period on November 14. Depending on the number of people wishing to comment, the time for individual comments may be limited.
The public may also present written comments to the Council. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask the BLM in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
People who plan to attend the meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should contact the BLM.
Danielle Allen, Alaska State Office, 222 W. 7th Avenue #13, Anchorage, AK 99513. Telephone (907) 271-3335 or e-mail
The 15-member Council advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Alaska. At this meeting, topics planned for discussion include:
• Fire Season Closeout
• Invasive Species
• Resource Management Planning
• Land Conveyance Program Update
• 17(b) Easement Management
• Other topics the Council may raise
Bureau of Land Management, Interior.
Announcement of meeting.
The Bureau of Land Management (BLM) announces that the Wild Horse and Burro Advisory Board will conduct a meeting on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands.
The Advisory Board will meet Monday, November 5, 2007, from 8 a.m. to 5 p.m., local time. This will be a one day meeting.
The Advisory Board will meet at the Hilton Portland & Executive Tower, 921 SW., Sixth Avenue, Portland, Oregon. The Hilton's phone number is (503) 226-1611.
Written comments pertaining to the Advisory Board meeting should be sent to: Bureau of Land Management, National Wild Horse and Burro Program, WO-260, Attention: Ramona DeLorme, 1340 Financial Boulevard, Reno, Nevada, 89502-7147. Submit written comments pertaining to the Advisory Board meeting no later than close of business, October 31, 2007. See the
Ramona DeLorme, Wild Horse and Burro Administrative Assistant, at 775-861-6583. Individuals who use a telecommunications device for the deaf (TDD) may reach Ms. DeLorme at any time by calling the Federal Information Relay Service at 1-800-877-8339.
Under the authority of 43 CFR part 1784, the Wild Horse and Burro Advisory Board advises the Secretary of the Interior, the Director of the BLM, the Secretary of Agriculture, and the Chief of the Forest Service, on matters pertaining to management and protection of wild, free-roaming horses and burros on the Nation's public lands. The tentative agenda for the meeting is:
The meeting site is accessible to individuals with disabilities. An individual with a disability needing an auxiliary aid or service to participate in the meeting, such as an interpreting service, assistive listening device, or materials in an alternate format, must notify the person listed under
The Federal Advisory Committee Management Regulations [41 CFR 101-6.1015(b),] require BLM to publish in the
Members of the public may make oral statements to the Advisory Board on November 5, 2007, at the appropriate point in the agenda. This opportunity is anticipated to occur at 3 p.m., local time. Persons wishing to make statements should register with the BLM by noon on November 5, 2007, at the meeting location. Depending on the number of speakers, the Advisory Board may limit the length of presentations. At previous meetings, presentations have been limited to three minutes in length. Speakers should address the specific wild horse and burro-related topics listed on the agenda. Speakers must submit a written copy of their statement to the address listed in the
Participation in the Advisory Board meeting is not a prerequisite for submission of written comments. The BLM invites written comments from all interested parties. Your written comments should be specific and explain the reason for any recommendation. The BLM appreciates any and all comments, but those most
In the event there is a request under the Freedom of Information Act (FOIA) for a copy of your comments, the BLM will make them available in their entirety, including your name and address. However, if you do not want the BLM to release your name and address in response to a FOIA request, you must state this prominently at the beginning of your comment. The BLM will honor your request to the extent allowed by law. The BLM will release all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, in their entirety, including names and addresses.
Speakers may transmit comments electronically via the Internet to:
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC67185 from Klabzuba Oil and Gas, Inc. for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement of oil and gas lease COC67178 from Klabzuba Oil and Gas, Inc. for lands in Moffat County, Colorado. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Milada Krasilinec, Land Law Examiner, Branch of Fluid Minerals Adjudication, at 303.239.3767.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $5.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321
To ensure that your written comments on the DRMP/DEIS will be considered, they should be submitted to the BLM within 90 days following the date the Environmental Protection Agency publishes its notice of availability in the
Address written comments to: RMP Comments, Kanab Field Office, Bureau of Land Management, 318 North 100 East, Kanab, Utah 84741. Comments may also be faxed to the Field Office at 435-644-4620, or submitted electronically by e-mail at:
For further information or to have your name added to the Kanab RMP mailing list, visit the RMP Web site:
The DRMP/DEIS addresses public lands and resources, including the Federal mineral estate, managed by the Kanab Field Office in Kane and Garfield Counties, Utah. These lands and resources are currently managed under five land use plans: Cedar-Beaver-Garfield-Antimony RMP (1986), Escalante Management Framework Plan (MFP) (1981), Paria MFP (1981), Vermilion MFP (1981), and Zion MFP (1981). The planning area includes approximately 550,000 acres of BLM-administered surface lands and an additional 96,600 acres of Federally-owned minerals under Federal, state, and private lands in the area. Decisions in the Kanab RMP will only apply to BLM-administered public lands and Federal mineral estate. The DRMP/DEIS proposes and analyzes four alternatives for future management of the public lands and resources in the planning area.
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Examples of issues considered in the DRMP/DEIS include access and transportation, recreation and off-highway vehicle management, special designations (including ACECs and suitability findings for eligible wild and scenic rivers, among others), range management and livestock, oil and gas leasing, mining, special status species, and non-WSA lands with wilderness characteristics. As required by law, the DRMP/DEIS considers the designation and protection of ACECs. ACEC values and resource use limitations vary by ACEC, and the ACECs themselves vary by alternative. (Refer to the table below.) More detailed management prescriptions in these areas are provided in the DRMP/DEIS.
The application of the Federal coal unsuitability criteria to the Alton, Kaiparowits, and Kolob Coal Fields is included in Appendix F of the DRMP/DEIS. As required by 43 CFR 3461.2-1(a)(2), the public is invited to comment on the results of the application of the criteria and the process used to derive these results. The criteria are listed under 43 CFR 3461.5. Additionally, any person who may be adversely affected by adoption of coal leasing decisions in the proposed plan may request a public hearing on coal leasing potential before the DRMP/DEIS is finalized.
National Park Service, Interior.
Notice of Intent of Establish an Aircraft Overflights Advisory Council.
This notice is published in accordance with section 9(a) of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix). Following consultation with the General Services Administration, notice is hereby given that the Secretary of the Interior has formally established the Denali National Park and Preserve Aircraft Overflights Advisory Council to provide advice and recommendations on mitigation of impacts from aircraft overflights at Denali National Park and Preserve.
Michael J. Tranel, Denali National Park and Preserve, 240 W. 5th Avenue, Anchorage, Alaska, 99501, (907) 644-3611,
The Denali National Park and Preserve Aircraft Overflights Advisory Council has been established in accordance with the Denali National Park and Preserve's
National Park Service, Department of Interior.
Notice of availability of a Record of Decision on the Final Environmental Impact Statement for the Cape Cod National Seashore Hunting Program, Cape Cod National Seashore.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 852,853, codified as amended at 42 U.S.C. section 4332(2)(c), the National Park Service announces the availability of the Record of Decision for the Final Environmental Impact Statement (FEIS) for the Cape Cod National Seashore Hunting Program, Cape Cod National Seashore, Massachusetts. On September 18, 2007, the Regional Director, Northeast Region approved the Record of Decision for the project. As soon as practicable, and as described in the Record of Decision, the National Park Service will begin to implement the Preferred Alternative contained in the FEIS issued on August 10, 2007. The following course of action will occur under the preferred alternative. Cape Cod National Seashore will increase hunting opportunities for native upland game bird species; apply adaptive management to phase out the pheasant stocking and hunting program; simplify and clearly delineate hunting areas and increase the “no-hunting” safety buffers along bike paths; expand hunting-related outreach to hunting and non-hunting users; and undertake cooperative monitoring and management of game species. This course of action and two alternatives were analyzed in the Draft and Final Environmental Impact Statements. The full range of foreseeable environmental consequences was assessed.
The Record of Decision includes a statement of the decision made, synopses of other alternatives considered, the basis for the decision, a description of the environmentally preferable alternative, a finding on impairment of park resources and values, and an overview of public involvement in the decision-making process.
Superintendent, Cape Cod National Seashore, 99 Marconi Site Road, Wellfleet, Massachusetts, 02667. Telephone: (508) 349-3785, Fax; (508) 349-9052. E-mail:
Copies of the Record of Decision may be obtained from the contact listed above or online at
Notice is hereby given that on October 2, 2007, a proposed Consent Decree in
The proposed Consent Decree resolves claims alleged by the United States, on behalf of the United States Environmental Protection Agency (``EPA''), and the United States Department of the Interior (``DOI''), against the 3M Company, under the Comprehensive Environmental Response, Compensation, and Liability Act (``CERCLA''), 42 U.S.C. 9601
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
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web Site,
Notice is hereby given that on September 27, 2007, a proposed Partial Consent Decree (“Consent Decree”) in
In
For a period of 30 days from the date of this publication, the Department of Justice will receive comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney, 9 Executive Drive, Fairview Heights, IL 62208-1344, and at the U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, IL 60604-3590. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site:
Notice is hereby given that on September 28, 2007, a proposed Settlement Agreement Regarding the El Paso County Metals Survey Site was filed with the United States Bankruptcy Court for the Southern District of Texas in
The Department of Justice will receive comments relating to the proposed Agreement for a period of thirty (30) days from the date of this publication. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Agreement may be examined at the Office of the United States Attorney for the Southern District of Texas, 800 North Shoreline Blvd, #500, Corpus Christi, TX 78476-2001, and at the Region 6 Office of the United States Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202. During the public comment period, the proposed Agreement may also be examined on the following Department of Justice Web site,
On August 23, 2007, notice was published in the
In this action the United States sought, pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9606 and 9607, injunctive relief and the recovery of cost incurred by the United States in responding to a release or threat of release of hazardous substances at or from the Wauconda Sand and Gravel Superfund Site (the “Site”) located in Lake County, Illinois, at or near to the Village of Wauconda. Under the proposed Consent Decree, the settling defendants will complete the connection of over 400 homes to the Village of Wauconda's municipal water works, expand the Village's municipal water works to accommodate the increased demand, perform operation and maintenance at the Site, and conduct groundwater monitoring activities. The proposed Consent Decree also requires the Settling Defendants to pay past and future response costs incurred by the United States relating to the Site. In addition, the proposed Consent Decree also includes a covenant not to sue under Sections 106 and 107 of CERCLA and under Section 7003 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. 6973.
The Department of Justice will receive for an additional period of time ending fourteen (14) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, 219 South Dearborn Street, Chicago, Illinois 60604, and at U.S. EPA Region 5, 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, to
Notice is hereby given that on October 3, 2007, a proposed Consent Decree is
The proposed Consent Decree resolves claims alleged by the United States, on behalf of the United States Environmental Protection Agency (“EPA”), and the United States Department of the Interior (“DOI”), against the BNSF Railway Company, under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601
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
During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that a proposed consent decree in
The Consent Decree resolves the United States' claims by requiring the defendants the City of Hastings, Dravo Corporation, and Dutton-Lainson Company to implement the final remedial design/remedial action for the ground water operable unit and to pay the United States' past and future costs related to the Subsite. Under the Decree, the U.S. Navy will make an initial payment to the defendants of $250,000 and after the clean up is completed, pay the defendants 25% of their Response Costs in excess of $1,000,000.
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
The proposed consent decree may be examined at the office of the United States Attorney, 1620 Dodge Street, Omaha, Nebraska 68102, and at the Region VII Office of the Environmental Protection Agency, 901 North Fifth Street, Kansas City, Kansas 66101. During the public comment period, the proposed consent decree may also be examined on the Department of Justice Web site, at
Notice is hereby given that on October 2, 2007, a proposed Consent Decree in
In this acton the United States, the California Air Resources Board (ARB) and the North Coast Air Quality Management District (NCAQMD) sought civil penalties and injunctive relief under the Clean Air Act and state law against Evergreen Pulp, Inc. at its wood pulp mill located in Samoa, California. The Consent Decree requires Evergreen Pulp, Inc. to: (1) Pay a civil penalty of $300,000 to the United States; (2) pay a civil penalty of $300,000 to ARB; (3) pay a civil penalty of $300,000 to NCAQMD; and (4) install air pollution control equipment.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at U.S. EPA Region 9, Office of Regional Counsel, 75 Hawthorne Street, San Francisco, California. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Consistent with Section 122(d) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(d), and 28 CFR 50.7, notice is hereby given that on September 24, 2007, a proposed Partial Consent Decree with Ferguson Harbour Incorporated in
In this action, the United States seeks to recover from various defendants, pursuant to Section 107 of CERCLA, 42 U.S.C. 9607, the costs incurred and to be incurred by the United States in responding to the release and/or threatened release of hazardous substances at and from the Industrial Pollution Control Site in Jackson, Hinds County, Mississippi. Under the proposed Consent Decree, Defendant Ferguson Harbour Incorporated will pay $10,000 to the Hazardous Substances Superfund in reimbursement of the costs incurred by the United States at the Site. The amount of the proposed settlement is based upon financial information provided by Ferguson Harbour Incorporated indicating a limited ability to pay.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Partial Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at U.S. EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303 (contact Matthew Hicks, Esq. (404) 562-9670). During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on September 24, 2007, a proposed Consent Decree in
The proposed Consent Decree relates to the Tex Tin Superfund Site located in Texas City, Galveston County, Texas (``the Site'') at the corner of Farm to Market Road 519 and State Highway 146. Metal smelting operations, principally for production of tin but also including other metal smelting and other production operations, occurred at the Site intermittently from approximately 1941 until 1991. Implementation of the remedy selected by EPA for the Site is now complete.
In May 1996, Amoco Chemical Co. (now known as BP Amoco Chemical Company and hereinafter referred to as ``BP ACC'') filed the Amoco lawsuit pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. 9607 and 9613, for recovery of and contribution for CERCLA response costs.
In October 2003, the Tex Tin Settling Defendants Steering Committee filed in the Tex Tin lawsuit a First Amended Third Party Complaint pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. 9607 and 9613, for recovery of response costs against seven parties including Great Lakes Carbon Corp. and Phelps Dodge Corp. In 2003, Great Lakes Carbon Corporation converted to a Delaware Limited Liability Company and changed its name to Great Lakes Carbon LLC.
On September 24, 2007, the United States filed a Complaint in
Under the proposed Consent Decree, Great Lakes Carbon LLC will pay to the United States $150,000 and to the Tex Tin Settling Defendants Steering Committee and BP ACC $100,000 and Phelps Dodge Corp. will pay to the United States $93,000 and to the Tex Tin Settling Defendants Steering Committee and BP ACC $62,000. In the proposed Consent Decree, the United States covenants not to sue Settling Defendants under CERCLA Sections 106 and 107, 42 U.S.C. 9606 and 9607, in connection with the Site. CERCLA Section 113(f)(2), 42 U.S.C. 9613(f)(2), provides that contribution protection arises for matters addressed in the proposed Consent Decree. The proposed Consent Decree defines the “matters addressed” as “all response actions taken or to be taken and all response costs incurred or to be incurred, at or in connection with the Site, by the United States or any other person.” Also in the proposed Consent Decree, the Tex Tin Settling Defendants Steering Committee and BP ACC covenant not to sue and agree not to assert any claims or causes of action against Settling Defendants (1) with regard to the Site pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C. 9607 and 9613; and (2) with regard to any claim arising out of response activities at the Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, Southern District of Texas, 919 Milam, Suite 1500, Houston, TX 77002, and at U.S. EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site,
Notice is hereby given that on September 6, 2007, a Consent Decree in
The United States filed a complaint in June, 2006, against Sidney and Carol Maffett, M.A. Hanna Plastics Group, Inc., and the Wilmington Economic Development Corporation, to recover unreimbursed response costs that EPA incurred at the Site. The proposed consent decree with Sidney and Carol Maffett (“the Maffetts”) resolves the claims of the United States on behalf of EPA against the Maffets for past response costs under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607(a), in connection with the 12th Dump Site (“Site”) in Wilmington, Delaware. Pursuant to the consent decree, the Maffetts will reimburse $100,000 of EPA's past response costs, and will receive a covenant not to sue from EPA for past response costs as set forth in the consent decree.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to this proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, Attention: Nancy Flickinger (EES), and may be submitted by electronic mail to the following address:
The proposed Consent Decree may be examined at the Office of the United States Attorney for the District of Delaware, 1007 Orange Street, Suite 700, Wilmington, Delaware, 19899, and at U.S. EPA Region III's Office, 1650 Arch Street, Philadelphia, PA, 19103. During the public comment period, the consent decree may also be examined on the following Department of Justice Web site,
Pursuant to 28 CFR 50.7, notice is hereby given that on September 20, 2007, a proposed consent decree in
This Consent Decree will address claims asserted by the United States in a complaint filed contemporaneously with the Consent Decree against Richmond American Homes of Arizona, Inc. (Richmond American) for civil penalties and injunctive relief under section 113(b) of the Clean Air Act (the Act), 42 U.S.C. 7413(b), for failure to install suitable trackout control devices, failure to immediately clean up trackout, failure to implement dust control measures, and failure to operate water application while conducting earthmoving in violation of Rule 2 Regulation 1, and Rule 310 of Regulation 3 of the Maricopa County Air Quality Department (MCAQD) which are part of the federally approved and federally enforceable State Implementation Plan (SIP) submitted to EPA by the State of Arizona pursuant to section 110 of the Act, 42 U.S.C. 7410.
The proposed Consent Decree provides for the payment of $155,000 in civil penalties. The Consent Decree also includes measures designed to abate fugitive dust emissions which include installation of trackout control devices at its work sites; employing a dust control monitor at sites with 50 acres or more of surface; and requiring dust control training for employees and certain employees of sub-contractors whose job responsibilities involve dust generating operations.
The Department of Justice will receive for a period of thirty (30) days from the date of the publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and should refer to
The Consent Decree may be examined at the Office of the United States Attorney for the District of Arizona, Two Renaissance Square, 40 N. Central Avenue, Suite 1200, Phoenix, Arizona 85004-4408, and at U.S. Environmental Protection Agency, Region 9, Office of Regional Counsel, 75 Hawthorne Street, San Francisco, California 94105. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Notice is hereby given that on October 1, 2007, a proposed settlement in
In these actions, (1) the United States resolves claims for cost recovery, injunctive relief, natural resource damages and contractual relief against Textron Systems Corporation pursuant to Sections 106 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9606 and 9607; Section 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6973; Section 1431 of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300; ch. 21E of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act; and contracts between the United States and Textron Systems Corporation related to the Massachusetts Military Reservation Site on Cape Cod, Massachusetts (MMR or the Site); and (2) the Commonwealth of Massachusetts resolves claims for natural resource damages pursuant to Section 107 of CERCLA, 42 U.S.C. 9607, and ch. 21E of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act at the Site.
Pursuant to the Consent Decree Between United States of America, Commonwealth of Massachusetts and Textron Systems Corporation, Textron Systems Corporation will pay $5.6 million to the Army, through its Environmental Restoration Account; $800,000 to be deposited in a Special Account to pay EPA's future oversight costs relating to the Site; and $1.3 million to the Commonwealth and federal natural resources trustees for natural resource damage claims by the Commonwealth and the United States. In addition, Textron Systems Corporation will conduct decommissioning and removal of the site buildings, structures and debris from the MMR J-3 Range. The Decree provides Textron Systems Corporation with a covenant not to sue under the authorities listed above; it does not select the response actions at the Site, nor does it resolve the liability of other potentially responsible parties who remain available to perform work or provide other relief in connection with the Site.
The Department of Justice will receive for a period of 30 days from the date of this publication, comments relating to the settlement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
In addition, pursuant to M.G.L. ch. 21E, comments on the Consent Decree may also be separately submitted to the Commonwealth of Massachusetts to the attention of Dale Young, Director, Natural Resource Damages Program, Executive Office of Energy and Environmental Affairs, 100 Cambridge Street, Suite 900, Boston, Massachusetts 02114. Pursuant to ch. 21E § 3A(j)(2), the Commonwealth may receive comments up to 120 days after the October 1, 2007 date of lodging of the Consent Decree.
The settlement may be examined at the Office of the United States Attorney, District of Massachusetts, United States Courthouse, 1 Courthouse Way—Suite 9200, Boston, Massachusetts 02210. During the federal public comment period, the settlement may also be examined on the following Department of Justice Web site:
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on September 26, 2007 in response to a worker petition filed by a company official on behalf of workers of CCC Associates, Eurocast Division, Montgomery, Alabama.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than October 22, 2007.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than October 22, 2007.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
Signed at Washington, DC, this 2nd day of October 2007.
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on October 2, 2007 in response to a petition filed on behalf of workers at KLA-Tencor, San Jose, California.
The petition has been deemed invalid. The petition was filed by three workers employed in two separately identifiable business divisions of the firm. Consequently, further investigation would serve no purpose and the investigation has been terminated.
In accordance with section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of section 222(a)(2)(A) (increased imports) and section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(a)(2)(B) (shift in production) and section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department has determined that criterion (1) of section 246 has not been met. The firm does not have a significant number of workers 50 years of age or older.
The Department has determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department has determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under section 222 of the Trade Act of 1974.
The investigation revealed that criteria of section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the period of
Pursuant to section 19(b)(1)
The Exchange proposes to amend CBOE Rule 3.18 of its membership rules, titled Members and Associated Persons Who Are or Become Subject to a Statutory Disqualification, to modify the requirement that the Exchange hold a hearing to determine whether an associated person subject to a statutory disqualification under the Exchange Act may continue in association with an Exchange member. In particular, the Exchange proposes to allow its Membership Committee to waive the hearing provisions of Rule 3.18(c) when determining whether to allow such persons to continue in association with an Exchange member in those instances where Exchange Act Rule19h-1(a)(2)
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 those statements may be examined at the places specified in Item IV below and is set forth in sections (A), (B), and (C) below.
In accordance with Rule 3.18(a), the Exchange may determine not to permit an associated person of a member who is or becomes subject to a statutory disqualification under Exchange Act section 3(a)(39)
In many instances, CBOE members conduct both securities activities at the Exchange as registered brokers or dealers, and futures activities at a commodities exchange as registered futures commission merchants with the Commodities Futures Trading Commission (“CFTC”). Typically, these member firms have employees who are only involved in the futures side of the member's business. However, because the member must be registered with the Commission as a broker-dealer to conduct its securities activities, under the Exchange Act the member's employees, including those involved only in futures and other non-securities-related activities, may also be considered persons associated with a broker-dealer under Exchange Act section 3(a)(18).
Exchange Act Rule 19h-1 prescribes the form and content of, and establishes the mechanism by which the Commission reviews, proposals submitted by self-regulatory organizations (“SROs”), such as the Exchange, to allow persons subject to statutory disqualification to become or remain associated with member firms. Among other things, Rule 19h-1 provides for Commission review of notices filed by SROs proposing to admit to, or continue any person in, membership or association with a member, notwithstanding a statutory disqualification. However, in several instances, Rule 19h-1 provides that for certain persons, no such notice need be filed. In particular, Rule 19h-1(a)(2)
(i) Controls such member, is a general partner or officer (or person occupying a similar status or performing similar functions) of such member, is an employee who, on behalf of such member, is engaged in securities advertising, public relations, research, sales, trading, or training or supervision of other employees who engage or propose to engage in such activities, except clerical and ministerial persons engaged in such activities, or is an employee with access to funds, securities or books and records, or
(ii) Is a broker or dealer not registered with the Commission, or controls such (unregistered) broker or dealer or is a general partner or officer (or person occupying a similar status or performing similar functions) of such broker or dealer.
In proposing this rule change, the Exchange notes that the CFTC
The Exchange believes the proposed rule change is consistent with Exchange Act section 6(b)(5),
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, as amended.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”)
The Participants are proposing to modify Section 7(a)(ii)(C) of the Linkage Plan so as to eliminate the “Class Gate” restriction on Principal Order access through the Linkage. Currently, Section 7(a)(ii)(C) of the Linkage Plan provides that, once a Participant automatically executes a Principal Order in a series of an Eligible Option Class, it may reject any other Principal Orders sent in the same Eligible Option Class by the same Participant for 15 seconds after the initial execution unless there is a price change in the receiving Participant's disseminated offer (bid) in the series in which there was the initial execution and such price continues to be the NBBO. After the 15 second period, and until the sooner of one minute after the initial execution or a change in its disseminated offer (bid), the Section provides that the Participant that provided the initial execution is not obligated to execute any Principal Orders received from the same Participant in the same Eligible Option Class in its automatic execution system.
The Participants represent that a change to the “Class Gate” provision is appropriate because, at the time of the creation of the Linkage, various markets had restrictions on non-customer access to the automatic execution systems. Since then, all of the exchanges have removed those restrictions and allow access for orders on behalf of non-member market makers to their trading platforms, thus eliminating the need for the “Class Gate.”
The proposed amendment to the Linkage Plan will be effective upon approval by the Commission pursuant to Rule 608 of Regulation NMS under the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed amendment to the Linkage Plan is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 11A of the Securities Exchange Act of 1934 (the “Act”)
The purpose of the Joint Amendment is to amend Section 7(a)(i) of the
The proposed Joint Amendment to the Linkage Plan will be effective upon approval by the Commission pursuant to Rule 608 of Regulation NMS under the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Joint Amendment to the Linkage Plan is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to Joint Amendment No. 23 to File Number 4-429. 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.
Securities and Exchange Commission.
Notice of Meeting of SEC Advisory Committee on Improvements to Financial Reporting.
The Securities and Exchange Commission Advisory Committee on Improvements to Financial Reporting is providing notice that it will hold a public meeting on Friday, November 2, 2007, in the Auditorium, Room L-002, at the Commission's main offices, 100 F Street, NE., Washington, DC, beginning at 9:30 a.m. The meeting will be open to the public. The meeting will be webcast on the Commission's Web site at
The agenda for the meeting includes consideration of comment letters received by the Advisory Committee, consideration of reports of the subcommittees of the Advisory Committee, discussion of any recommendations proposed for adoption by the Advisory Committee, and discussion of next steps and planning for the next meeting.
Written statements should be received on or before October 26, 2007.
Written statements may be submitted by any of the following methods:
• Use the Commission's Internet submission form (
• Send an e-mail message to
• Send paper statements in triplicate to Nancy M. Morris, Federal Advisory Committee Management Officer, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. 265-24. This file number should be included on the subject line if e-mail is used. To help us process and review your statements more efficiently, please use only one method. The Commission staff will post all statements on the Advisory Committee's Web site (
James L. Kroeker, Deputy Chief Accountant, or Shelly C. Luisi, Senior Associate Chief Accountant, at (202) 551-5300, Office of the Chief Accountant, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6561.
In accordance with Section 10(a) of the Federal Advisory Committee Act, 5 U.S.C. App. 1, § 10(a), James L. Kroeker, Designated Federal Officer of the Committee, has approved publication of this notice.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend NASD Interpretative Material 2210-4 (“IM-2210-4”) to limit the use of FINRA's name and any other corporate name owned by FINRA and to require members and persons associated with a member that refer to their FINRA Membership on a Web site to provide a hyperlink to
In its filing with the Commission, FINRA included statements concerning the purpose of, and basis for, the proposed rule change, and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On November 9, 2006, the SEC approved an amendment to IM-2210-4 establishing a requirement for member firms and persons associated with a member that refer to their membership in NASD on a Web site to hyperlink to NASD's home page,
First, the proposed rule change amends the heading of IM-2210-4 to refer to FINRA instead of NASD. Second, the reference to the NASD By-Laws has been updated to refer to the FINRA By-Laws, which were adopted on July 30, 2007.
Third, paragraph (1) includes a reference to FINRA or any other corporate name or facility owned by FINRA. By including “any other corporate name or facility owned by FINRA,” IM-2210-4 will still retain limitations on the use of NASD's name to avoid any potential confusion or misuse of its legacy name, which is still widely accepted by investors. In addition, IM-2210-4 will encompass names or facilities of FINRA, including TRACE and ADF. Consequently, under the proposed rule change, members could neither state nor imply in any communications with the public that FINRA, or any other corporate name or facility owned by FINRA, endorses, indemnifies, or guarantees the member's business practices, selling methods, the class or type of securities offered, or any specific security.
Finally, in paragraph (3), FINRA replaces the references to “NASD” and the NASD Web site, “www.nasd.com,” with “FINRA,” and “www.finra.org” to reflect the new corporate identity. This amendment would require members, or persons associated with a member, that refer to their FINRA membership on a Web site to provide a hyperlink to
FINRA will announce the implementation date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of section 15A(b)(6) of the Act,
FINRA 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.
Written comments were neither solicited nor received.
The proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
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 interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to establish the NASDAQ Options Market, LLC (“NOM LLC”), a Delaware limited liability company that will operate the NASDAQ Options Market (“NOM”) as a Nasdaq facility, as that term is defined in section 3(a)(2) of the Act.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any
Nasdaq is a registered national securities exchange and a self-regulatory organization (“SRO”) under section 6 of the Act.
Nasdaq has submitted a separate rule proposal to establish rules relating to listing, membership and trading on NOM.
As part of this filing, Nasdaq is submitting to the Commission the LLC Agreement of NOM LLC, which specifically relates to the governance of NOM LLC that will ensure that Nasdaq has authority over NOM LLC to fulfill Nasdaq's responsibility for all regulatory functions related to NOM. The primary purpose of this rule filing is to establish that Nasdaq's current corporate and self-regulatory structures along with the proposed structure of NOM LLC as a wholly-owned subsidiary are sufficient to ensure that NOM LLC and NOM will be operated and regulated in a manner that is consistent with the Act.
For example, NASDAQ Inc. submitted to the Commission's jurisdiction with respect to activities relating to the Exchange, and agreed to provide the Commission with access to its books and records. NASDAQ Inc. also agreed to keep confidential non-public information relating to the self-regulatory function of the Exchange and not to use such information for any non regulatory purpose. In addition, the board of directors of NASDAQ Inc., as well as its officers, employees, and agents are required to give due regard to the preservation of the independence of the Exchange's self-regulatory function. Finally, the NASDAQ Inc. By-Laws require that any changes to the NASDAQ Inc. Certificate of Incorporation and By-Laws be submitted to the Board of Directors of the Exchange (“Exchange Board”), and, if the Exchange Board determines that such amendment is required to be filed with the Commission pursuant to section 19(b) of the Act, such change shall not be effective until filed with, or filed with and approved by, the Commission.
NASDAQ Inc.'s Certificate of Incorporation imposes limits on direct and indirect changes in control, which prevent any shareholder from exercising undue control over the operation of the Exchange. Specifically, no person who beneficially owns shares of common stock, preferred stock, or notes in excess of five percent of the securities generally entitled to vote may vote the shares in excess of five percent. The Exchange's rules also prohibit Exchange members and persons associated with Exchange members from beneficially owning more than twenty percent of the then-outstanding voting securities of NASDAQ Inc. These rules prevent a member that is a controlling shareholder of an exchange from exerting that controlling influence to direct or otherwise cause the exchange to refrain from diligently monitoring and surveiling the member's conduct or diligently enforcing its rules and the federal securities laws with respect to conduct by the member that may violate such provisions.
The protections, limitations, and requirements provided by the structure established in NASDAQ Inc.'s Certificate of Incorporation and Bylaws will continue to exist and, under this proposal, will apply with equal force to NOM LLC as a facility and wholly-owned subsidiary of the Exchange upon its creation. Moreover, Commission approval would be required in order to modify the protections provided by NASDAQ Inc.'s Certificate of Incorporation or Bylaws.
In addition to protections contained in the NASDAQ Inc. structure, the Exchange structure also provides protections via the composition of its Board of Directors, Board Committees, and several regulatory structures. Under the Exchange's By-laws, twenty percent of the Directors on the Exchange Board, which is the governing body of the Exchange and possesses all of the powers necessary for the execution of its self-regulatory responsibilities, must be “Member Representative Directors.” In addition, the number of “Non-Industry Directors” must equal or exceed the sum of the number of “Industry Directors” and “Member Representative Directors.” The Exchange Board also must include at least one “Public Director” and at least one issuer representative (or at least two if the Exchange Board consists of ten or more members). The requirement that twenty percent of the directors be “Member Representative Directors” and the means by which they are elected by members provides for the fair representation of members in the
As Exchange members, NOM participants will also be protected by several committees established by the Exchange's By-laws that are composed solely of directors: An Executive Committee, a Finance Committee, a Management Compensation Committee, an Audit Committee, and a Regulatory Oversight Committee (“ROC”). In addition, the Exchange has these other committees that are not required to be composed solely of directors: Nasdaq Listing and Hearing Review Committee, a Nasdaq Review Council (“NRC”), a Nominating Committee, a Member Nominating Committee, a Quality of Markets Committee, a Market Operations Review Committee, an Arbitration and Mediation Committee, and a Market Regulation Committee. The Exchange's committees enable it to carry out its responsibilities under the Act.
The ROC plays a central role in the regulation of the Exchange and its facilities. It consists of three members, each of whom must be a Public Director and “independent director” as defined by Nasdaq Exchange Rule 4200. The ROC is responsible for monitoring the adequacy and effectiveness of the Exchange's regulatory program, assessing the Exchange's regulatory performance, assisting the Exchange Board in reviewing the Exchange's regulatory plan and the overall effectiveness of the Exchange's regulatory functions. The ROC meets with the Chief Regulatory Officer (“CRO”) in executive session at regularly scheduled meetings and at any time upon request of the CRO or any member of the ROC. The ROC is informed about the CRO's compensation, promotion, or termination (including reasons). Finally, the Exchange regulatory budget is presented to the ROC so that its members may inquire as to the adequacy of resources available for the Nasdaq Exchange's regulatory program. Under this proposal, the ROC and the Exchange CRO will assume responsibility for regulating quoting and trading on NOM and conduct by NOM participants.
The Exchange's CRO has general supervision of the regulatory operations of the Exchange, including overseeing surveillance, examination, and enforcement functions. The CRO administers the regulatory services agreement with NASD Regulation. Although the Exchange is an SRO with all of the attendant regulatory obligations under the Act, it has entered into the Regulatory Contract with NASDR, under which NASDR performs certain regulatory functions on its behalf. In addition to performing certain membership functions for the Exchange, NASDR performs certain disciplinary and enforcement functions for the Exchange. Generally, NASDR investigates members, issue complaints, and conducts hearings pursuant to the Exchange's rules. Appeals of disciplinary hearings, however, will be handled by the NRC. The Regulatory Contract between the Exchange and NASDR governs the Exchange and its facilities and therefore will automatically govern NOM. In connection with the creation of NOM, the Exchange and NASDR will modify the Regulatory Contract as necessary to ensure complete and high quality regulation of all quoting and trading on NOM as well as the conduct of NOM participants.
Notwithstanding the Regulatory Contract, the Exchange retains ultimate legal responsibility for the regulation of its members and its market. The Exchange's By-Laws and rules provide that it has disciplinary jurisdiction over its members so that it can enforce its members' compliance with its rules and the federal securities laws. The Exchange's rules also permit it to sanction members for violations of its rules and violations of the federal securities laws by, among other things, expelling or suspending members, limiting members' activities, functions, or operations, fining or censuring members, or suspending or barring a person from being associated with a member. The Exchange's rules also provide for the imposition of fines for minor rule violations in lieu of commencing disciplinary proceedings.
The Exchange has an independent regulatory department, Nasdaq Regulation, which carries out many of the Exchange's regulatory functions, including administering its membership and disciplinary rules and is functionally separate from the Exchange's business lines. Nasdaq Regulation includes MarketWatch, which performs real-time intraday surveillance over all Nasdaq Exchange-listed companies and all Nasdaq Exchange market participants. More specifically, MarketWatch oversees the complete and timely disclosure of Nasdaq Exchange issuers' material information to determine if a trading halt is necessary to maintain an orderly market for the release of material news. In addition, MarketWatch, through its automated detection system, monitors the trading activity of each security and will generate a price and volume alert to aid in the assessment of unusual market activity. MarketWatch also coordinates and executes the release of initial public offerings; administers market participants' excused withdrawals and passive market making requests; and handles the clearly erroneous trade adjudication process. If MarketWatch observes any activity that may involve a violation of Commission or Exchange rules, MarketWatch immediately refers the activity to NASDR's Market Regulation Department for further investigation and potential disciplinary action. Nasdaq Regulation, including MarketWatch, will perform the same regulatory role with respect to NOM, including operating automated detection systems to perform real-time surveillance of quoting and trading on NOM and to maintain a fair and orderly market.
By virtue of NOM LLC's structure as a facility of the Exchange, and as single-member LLC having the Exchange as the single member, NOM LLC will,
Not only is NOM LLC limited to acting exclusively through the Exchange, it is also limited to acting only through officers of the Exchange. Under Section 10 of the LLC Agreement, each officer of NOM LLC will also be an officer of the Exchange with the same powers, obligations, and responsibilities of an officer of the Exchange. Moreover, the LLC Agreement requires NOM LLC officers separately to agree to comply with the federal securities laws and the rules and regulations thereunder, and to cooperate with the SEC and Nasdaq pursuant to their regulatory authority and the provisions of the LLC Agreement. Any violation of the federal securities laws by an individual officer acting in her capacity as a NOM LLC officer would also be a violation by an Exchange officer and, in both cases, such violations would be subject to Commission jurisdiction.
Finally, the Exchange's rules provide an additional layer of regulatory protection by requiring that each broker-dealer that participates in the options trading on NOM must first be a member of the Exchange, as set forth in the companion proposal on NOM rules.
Specifically, Nasdaq will delegate performance of the following functions to NOM pursuant to the Nasdaq Delegation Agreement:
1. To operate NOM, including automated systems supporting it.
2. To provide and maintain a communications network infrastructure linking market participants for the efficient processing and handling of quotations, orders, transaction reports, and comparisons of transactions in options.
3. To act as a Securities Information Processor for quotations and transaction information related to securities traded on NOM and any trading facilities operated by NOM.
4. To administer the participation of Nasdaq in the National Market System plans governing the listing, quoting, trading, and regulation of options and Commission regulations related thereto.
5. To collect, process, consolidate, and provide to Nasdaq accurate information requisite to the operation of a surveillance audit trail for the quoting and trading of options.
6. To develop and adopt rules governing listing standards applicable to options listed on NOM in consultation with Nasdaq.
7. To establish and assess listing fees, access fees, transaction fees, market data fees and other fees for the products and services offered by NOM.
8. To develop, adopt, and administer rules governing participation in NOM.
9. To refer to Nasdaq any complaints of a regulatory nature involving potential rule violations by member organizations or employees.
10. To establish the annual budget for NOM.
11. To determine allocation of NOM resources.
12. To manage external relations on matters related to trading on and the operation and functions of NOM with Congress, the Commission, state regulators, other SROs, business groups, and the public.
Nasdaq will have ultimate responsibility for the operations, rules and regulations developed by NOM, as well as their enforcement. Actions taken pursuant to delegated authority will remain subject to review, approval or rejection by the Exchange Board in accordance with procedures established by that board of directors.
In addition, Nasdaq will expressly retain the following authority and functions:
1. To exercise overall responsibility for ensuring that statutory and self-regulatory obligations and functions of Nasdaq are fulfilled and to perform any duties and functions not delegated.
2. To delegate authority to NOM to take actions on behalf of the Nasdaq.
3. To direct NOM to take action necessary to effectuate the purposes and functions of Nasdaq, consistent with the independence of Nasdaq's regulatory functions, exchange rules, policies, and procedures, and the federal securities laws.
In addition, for so long as NOM has any delegated market responsibility pursuant to the Nasdaq Delegation Agreement, NOM agrees that:
1. To the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of Nasdaq or any Delegated Market Responsibility (including but not limited to disciplinary matters, trading data, trading practices, and audit information) contained in the books and records of Nasdaq that shall come into the possession of NOM shall: (a) Not be made available to any person (other than as provided in the next sentence) other than to those officers, directors, employees and agents of the NOM who have a reasonable need to know the contents thereof; (b) be retained in confidence by NOM and the officers, directors, employees and agents of NOM; and (c) not be used for any commercial purposes; provided, that nothing in this sentence shall be interpreted so as to limit or impede the rights of the Commission or Nasdaq to access and examine such confidential information pursuant to the federal securities laws and the rules and
2. NOM's books and records shall be subject at all times to inspection and copying by (a) the Commission and (b) Nasdaq.
3. NOM's books and records shall be maintained within the United States.
4. The books, records, premises, officers, and employees of NOM shall be deemed to be the books, records, premises, officers and employees of Nasdaq for purposes of and subject to oversight pursuant to the Act.
5. NOM shall comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Commission and Nasdaq pursuant to and to the extent of its regulatory authority, and shall take reasonable steps necessary to cause its agents to cooperate, with the Commission and, where applicable, Nasdaq, pursuant to their regulatory authority.
6. NOM, its officers and employees shall give due regard to the preservation of the independence of the self-regulatory function of Nasdaq and to obligations to investors and the general public and shall not take any actions that would interfere with the effectuation of any decisions by the board of directors or managers of Nasdaq relating to their regulatory functions (including disciplinary matters) or that would interfere with the ability of Nasdaq to carry out its responsibilities under the Act.
7. NOM, its officers, and those of its employees whose principal place of business and residence is outside of the United States shall be deemed to irrevocably submit to the jurisdiction of the United States federal courts and the Commission for the purposes of any suit, action or proceeding pursuant to the United States federal securities laws and the rules and regulations thereunder, commenced or initiated by the Commission arising out of, or relating to, the activities of Nasdaq or any delegated market responsibility (and shall be deemed to agree that NOM may serve as the U.S. agent for purposes of service of process in such suit, action, or proceeding), and NOM and each such officer or employee, in the case of any such officer or employee by virtue of his acceptance of any such position, shall be deemed to waive, and agree not to assert by way of motion, as a defense or otherwise in any such suit, action or proceeding, any claims that it or they are not personally subject to the jurisdiction of the Commission, that such suit, action or proceeding is an inconvenient forum or that the venue of such suit, action or proceeding is improper, or that the subject matter thereof may not be enforced in or by such courts or agency.
For so long as NOM has any delegated market responsibility pursuant to this Agreement, Nasdaq agrees that Nasdaq may not transfer or assign any of its ownership of NOM. The Nasdaq Delegation Agreement may not be modified except pursuant to a written agreement among Nasdaq and NOM provided that, prior to the effectiveness of any such amendment, such amendment shall be filed with, and approved by, the Commission under Section 19 of the Act and the rules promulgated thereunder.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of section 6(b) of the Act.
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to increase the annual membership fee for Nasdaq members under Nasdaq Rule 7001. The text of the proposed rule change is available at Nasdaq, the Commission's Public Reference Room, and Nasdaq's Web site,
In its filing with the Commission, Nasdaq 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. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is increasing its annual membership fee, which is assessed on all Nasdaq members as of a date determined by Nasdaq in December of each year, from $1,200 to $3,000 per year. The fee had initially been set at a level to ease the transition of the Nasdaq Market Center's status as a facility of the Financial Industry Regulatory Authority, Inc. (f/k/a the National Association of Securities Dealers, Inc.) to a facility of a new self-regulatory organization (“SRO”). Now that Nasdaq has an established membership base, Nasdaq believes that the fee increase is warranted to ensure that its annual membership fee funds a greater portion of the cost of regulating the Nasdaq market. Nasdaq believes that even with the fee increase, the cost of Nasdaq membership is generally lower than the cost of membership in other SROs.
Nasdaq believes that the proposed rule change is consistent with the provisions of section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing proposed rule change has become effective upon filing with the Commission pursuant to section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange, through its wholly owned subsidiary NYSE Arca Equities, proposes to amend its Schedule of Fees and Charges for Exchange Services (the “Fee Schedule”) to revise transaction fees for orders submitted by ETP Holders
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, 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.
As part of its continuing efforts to enhance participation on the Exchange, NYSE Arca Equities proposes to amend relevant sections of its Fee Schedule that apply to orders submitted for NYSE and Nasdaq-listed securities, excluding Exchange Traded Funds (“ETFs”) listed on the NYSE. These changes will narrow the margins of fees received and credits paid by either: (1) For Nasdaq-listed securities, reducing the fees assessed for orders that remove liquidity from the NYSE Arca Equities book, or (2) for NYSE-listed securities (other than ETFs), increasing the credits provided for orders that provide liquidity to the book.
Currently, the fees and credits for round lot orders in NYSE-listed securities are $0.003 per share and $0.002 per share, respectively. Pursuant to this proposal, for NYSE-listed securities (excluding ETFs), the Exchange will increase the $0.002 per share credit to $0.0025 per share.
Similarly, the fees and credits for round lot orders in Nasdaq-listed securities are $0.003 per share and $0.002 per share, respectively. Pursuant to this proposal, for Nasdaq-listed securities, the Exchange will reduce the $0.003 per share fee to $0.0025 per share.
Additionally, the Exchange proposes to reduce the fee for round lot and odd-lot orders of Nasdaq-listed securities submitted by ETP Holders routed away from the Exchange, and executed by another market center or participant, from $0.004 per share to $0.0035 per share.
By this filing, the Exchange has also made clarifying amendments to the Fee Schedule to reflect: (1) The approval of Nasdaq as a national securities exchange thereby classifying Nasdaq securities as “listed securities,” and (2) the dissolution of the Intermarket Trading System.
The Exchange believes that the proposed rule change is consistent with the objectives of section 6 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.
Written comments on the proposed rule change were neither solicited nor received.
The foregoing proposed rule change has become effective upon filing pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the 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 interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 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 Exchange proposes to amend the above-cited rules to permit Investment Company Units and Portfolio Depositary Receipts listed or traded on the NYSE Arca Marketplace pursuant to Rule 19b-4(e) under the Act
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Commission finds that the proposed rule change is consistent with section 6(b)(5) of the Act.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
October 5, 2007.
On July 30, 2007, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”), through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NYSE Arca proposes to expand the trading hours of certain ETFs to include all three Exchange trading sessions.
The Exchange makes the following representations with respect to the trading of Covered ETFs during all three Exchange trading sessions:
1. The Exchange has appropriate rules to facilitate transactions in the shares of ETFs during all trading sessions. The Exchange deems such shares to be equity securities, thus rendering trading in such shares subject to the Exchange's existing rules governing the trading of equity securities.
2. The Exchange's surveillance procedures are adequate to properly monitor the trading of shares of the ETFs in all trading sessions.
3. The Exchange has distributed an Information Bulletin to Equity Trading Permit (“ETP”) Holders prior to the commencement of trading of the shares of the ETFs that explains the terms, characteristics, and risks of trading such shares. In addition, the Exchange states that it will distribute an Information Bulletin that explains the terms, characteristics, and risks of trading the shares of the ETFs that have not yet been launched to ETP Holders prior to the commencement of trading of such shares.
4. The Exchange will require ETP Holders with a customer who purchases newly issued shares of the ETFs in any trading session on the NYSE Arca Marketplace to provide that customer with a product description, if available, or a prospectus, and has noted this delivery requirement in the Information Bulletin.
5. When the Exchange is the UTP trading market, the Exchange will cease trading in the shares of the ETFs during all trading sessions if (a) the listing market stops trading the shares, or (b) the listing market delists the shares. Additionally, the Exchange may cease trading the shares if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable. UTP trading in the shares of the ETFs is also governed by the trading halt provisions of NYSE Arca Equities Rule 7.34 relating to temporary interruptions in the calculation or wide dissemination of the intraday indicative value (“IIV”)
6. When the Exchange is the listing market, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the shares of an ETF. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the shares inadvisable. Factors for consideration may include (a) the extent to which trading is not occurring in the securities or other instruments underlying an ETF, or (b) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in the shares of listed ETFs are subject
7. The IIV and/or index value (or value of the underlying asset or instrument, if not an index) will continue to be disseminated during all three trading sessions, to the extent the relevant approval order provides for this dissemination requirement.
The Exchange states that the representations in the corresponding approval orders for each of the Covered ETFs shall continue to apply with respect to trading during the Core and Late Trading Sessions.
In a separate filing with the Commission, the Exchange recently amended NYSE Arca Equities Rule 7.34(e) to require ETP Holders to disclose additional risks associated with extended hours trading in new derivative securities products to customers.
The Exchange notes that, if the official index value does not change during some or all of the period when trading is occurring on the Exchange (for example, because of time zone differences or holidays in countries where the index component stocks trade), then the last calculated official index value must remain available throughout Exchange trading hours. Similarly, if the IIV does not change during any portion of Exchange trading hours, then the last official calculated IIV must remain available throughout Exchange trading hours.
After careful review and based on the Exchange's representations, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: (202-453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Federal Aviation Administration (FAA), DOT.
Request for public comment.
The Federal Aviation Administration is requesting public comment on Clinton County Airport (PLB), Plattsburgh, New York notice of proposed release from aeronautical use of approximately 624 acres of airport property, including runways, taxiways, aprons, airside and landside facilities to allow for non-aeronautical development. It has been determined through the planning process to close Clinton County Airport and transfer all operations to Plattsburgh International Airport (PBG), Plattsburgh, New York, its replacement airport. FAA's action is to release the land from its deed provision requiring aeronautical use of the property. A prior study explored the potential for the public benefit conveyance of Plattsburgh International Airport as a replacement airport, with Clinton County as the owner and operator of the new airport. The Plattsburgh International Military Airport Program application and Airport Master Plan determined that land constituting Clinton County Airport has no aeronautical use and should be replaced by the new facility at PGB. Revenue generated from the disposal of the property will be utilized at the replacement airport, Plattsburgh International Airport, Plattsburgh, New York for aeronautical development. Documents reflecting the sponsor's request are available, by appointment only, for inspection at the Airport Manager's office and the FAA Airports District Office.
Comments must be received by November 13, 2007.
Comments on this application may be mailed or delivered to the FAA at the following address: Steven M. Urlass, Manager, FAA New York Airports District Office, 600 Old Country Road, Suite 446, Garden City, New York 11530. In addition, a coy of any comments submitted to the FAA must be mailed or delivered to Mr. James R. Langley, Chairperson, Clinton County Legislature, at the following address: Clinton County Government Center, 137 Margaret Street, Suite 208, Plattsburgh, New York 12901.
Steven M. Urlass, Manager, New York Airports, District Office, 600 Old Country Road, Suite 446, Garden City, New York 11530; telephone (516) 227-3813; E-mail
Section 125 of the Wendell H. Ford Aviation Investment and Reform Act for the 1st Century (AIR21) requires the FAA to provide an opportunity for public notice and comment before the Secretary may waive a sponsor's Federal obligation to use certain airport land for aeronautical use.
Federal Aviation Administration (FAA) DOT.
Request for public comment.
The FAA proposes to rule and invites the public comment on the release of land at the Lafayette Regional Airport that is neither Surplus property (49 U.S.C. 47151
Comments must be received on or before November 13, 2007.
Comments on this application may be mailed or delivered to FAA at the following address: Mr. Lacey D. Spriggs, Manager, Federal Aviation Administration, Southwest Region, Airports Division, Louisiana/New Mexico Airports Development Office, ASW-640, Fort Worth, Texas 76137-4298.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Gregory M. Roberts, Director of Aviation, Lafayette Regional Airport at the following address: Lafayette Regional Airport, 200 Terminal Drive, Lafayette, Louisiana 70508-2159.
Ilia A. Quinones, Program Manager, Federal Aviation Administration, Louisiana/New Mexico Airports Development Office, ASW-640F, 2601 Meacham Boulevard, Fort Worth, Texas 76137-4298.
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the airport sponsor's request to release property at the Lafayette Regional Airport. The Lafayette Airport Commission requests the release of ± 6.013 acres (five parcels) of airport property. The release of this airport property along the existing U.S. Highway 90 will allow for the sale of these five parcels of airport property to the State of Louisiana, Department of Transportation and Development, which will allow for the construction of the I-49 Connector Project to proceed. The sale is estimated to provide $1,324,370.00 to the Lafayette Airport Commission that will allow the Lafayette Airport Commission to pay the airport sponsor's share for the development of a major cargo apron facility at the Lafayette Regional Airport.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Lafayette Regional Airport.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
This notice is to inform agencies and the public that an Environmental Impact Statement (EIS) will be prepared for a project in San Bernardino, California. Furthermore, it is advised that environmental review, consultation, and any other action required in accordance with applicable Federal laws and regulations for this project is being, or has been, carried out by the California Department of Transportation (Caltrans) under its July 1, 2007 assumption of all the United States Department of Transportation (USDOT) Secretary's responsibilities under National Environmental Policy Act (NEPA) pursuant to Section 6005 of SAFETEA-LU codified in 23 U.S.C. 327(a)(2)(A).
Mr. Russell Williams, Acting Office Chief, Environmental Oversight, California Department of Transportation District 8, 464 W. Fourth Street, San Bernardino, CA 92401. Telephone: (909) 383-1554.
The California Department of Transportation (Caltrans), in cooperation with the city of Victorville, will prepare an EIS on the proposal to construct a portion of the High Desert Corridor (HDC), in San Bernardino County, California. The proposed project would involve construction of a freeway/expressway to realign State Route (SR) 18 on new alignment from US 395 in the City of Adelanto to SR 18 near the Town of Apple Valley for a distance of approximately 21 miles. This notice of intent is prepared in accordance with 40 CFR 1501.7 and 1508.22.
In addition, to NEPA, the project is required to comply with the efficient environmental review process pursuant to the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003—A Legacy for Users (SAFETEA-LU) Section 6002 codified at 23 U.S.C. 138. The process is intended to promote efficient project management by the NEPA lead agency and to provide enhanced opportunities for coordination and accountability with the public as, well as, Federal, State, local, and tribal government agencies during the project development process. The process will include activities such as invitation of participating and cooperating agencies, preparation of a coordination plan, and establishment of a statute of limitations on the EIS. Pursuant to SAFETEA-LU Section 6002, sponsor agencies are required to notify the Secretary of Transportation of the type of work, termini, length, and general location of the project, together with a statement of Federal approvals anticipated to be necessary for the proposed project. Issuance of this notice will serve to meet these requirements for initiation of the environmental review process.
Currently, SR 18 exists as a four-lane conventional highway with numerous signalized intersections, business districts and congestion bottlenecks which restrict accessibility and mobility for east-west travel, and reduces throughput and safety for interregional travel in Victor Valley. The purpose of the project is to maximize accessibility to major economic generators such as the Southern California Logistics Airport and the industrial park surrounding Apple Valley Airport, improve mobility for interregional travel and truck/goods movement by providing freeway/expressway connectivity between regional routes US 395, I-15, and SR 18. Improvements to the corridor are considered necessary to alleviate the projected traffic demand for the increasing population growth in the area. Another goal of the project is to maintain consistency with the overall development of the High Desert Corridor and the future Victor Valley Beltway.
It is proposed to construct a “stand alone” phase of the HDC in Victor Valley from US 395 in Adelanto to SR 18 of the Town of Apple Valley, a distance of approximately 21 miles. A preferred Alternative has not been selected at this point, but two Build Alternatives will be analyzed along with the No-Build Alternative. Alternative 1, known as the north alignment, would construct the HDC as a multi-lane freeway/expressway on new alignment from U.S. 395 to continue east between the Southern California Logistics Airport and the proposed new Federal Prison in Victorville. The new alignment would cross the Mojave River and the BNSF mainline, intersect I-15 north of the Stoddard Wells Road Interchange, travel east through the industrial section of the Town of Apple Valley, then turn south to meet existing SR 18. In addition, at least 6 interchanges, 8 bridge/undercrossing structures, 5 grade intersections, and at least 300 ft. of right of way are proposed for Alternative 1.
Alternative 2, from US 395 to I-15, would follow the same alignment as Alternative 1 from U.S. 395 to just west of I-15. Alternative 2 would then swing south to tie into SR 18 near Rimrock Road. This section of the alternative from east of I-15 will be constructed as an access controlled highway. On the east of I-15, Alternative 2 will be on new alignment for about 3.5 miles and then it will replace existing SR 18 for about 6 miles. Alternative 2 will meet SR 18 in the same location as Alternative 1. In addition, at least 4 interchanges, 8 at grade intersections, and 200-300 ft of right of way are proposed for Alternative 2.
The two Alternatives will be studied and refined through efforts conducted under the National Environmental Policy Act (40 CFR parts 1500-1508 and 23 CFR part 771), the Clean Air Act Amendments, Section 404 of the Clean Water Act, Executive Order 12898 regarding Environmental Justice, the National Historic Preservation Act, the Federal Endangered Species Act, the Section 4(f) of the U.S. Department of Transportation Act, and other federal environmental protection laws, regulations, policies, and executive orders. Based on available information, the project is anticipated to require a Clean Water Act 404 permit, a right-of-way use permit from the Bureau of Land Management. In addition, consultation is anticipated under Section 7 of the FESA and Section 106 of the NHPA.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments, and suggestions are invited from all interested parties. The EIS will incorporate comments from the public scoping process as well as analysis from environmental and engineering technical studies. Other alternatives suggested during the scoping process would be considered during the development of the EIS. Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and Local agencies, and to private organizations and citizens who have previously expressed or are known to have interest in this proposal. Location and details of the public scoping meeting for the proposed project will be advertised in local newspapers and other media. Comments or questions concerning this proposed action and the EIS should be directed to Caltrans at the address indicated above.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, the Interstate (I)-94/Trunk Highway (TH) 10 Interregional Connection from west of Becker to east of St. Cloud in Sherburne, Stearns and Wright Counties, Minnesota. Those actions grant approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions of the highway project will be barred unless the claim is filed on or before 180 days from the date of this notice. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.
For FHWA: Mr. Thomas Sorel, Division Administrator, Federal Highway Administration, Galtier Plaza, Suite 500, 380 Jackson Street, St. Paul, Minnesota 55101, Telephone (651) 291-6100, e-mail:
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing approvals for the following highway project in Minnesota: I-94/TH 10 Interregional Connection from Clearwater, Wright County to Clear Lake, Sherburne County, Minnesota. The project will be an approximately 5.4-mile, four-lane freeway with interchanges at I-94 and TH 10 and a grade-separated rail crossing near TH 10 and includes the construction of a new crossing of the Mississippi River. The project also includes an interchange at existing TH 24 to provide local access to/from the Cities of Clear Lake and Clearwater. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS), approved on December 21, 2006, in the FHWA Record of Decision (ROD) issued on September 7, 2007, and in other documents in the FHWA project files. The FEIS, ROD and other project records are available by contacting the FHWA or Mn/DOT at the addresses provided above. The FHWA FEIS and ROD can be viewed and downloaded from the project Web site at
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1.
2.
3.
4.
5.
6. Safe Drinking Water Act (SDWA) [42 U.S.C. 300(f)-300(j)(6)]; Flood Disaster Protection Act [42 U.S.C. 4001-4128].
7.
U.S.C. 139(l)(1).
Federal Motor Carrier Safety Administration (FMCSA), (DOT).
Notice.
FMCSA announces the postponement of the Medical Review Board meeting that was scheduled for October 15, 2007 from 8 a.m.-11:30 a.m. at the U.S. Department of Transportation.
Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, 202-366-4001.
On August 14, 2007, FMCSA published a Notice in the
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection abstracted below will be submitted to the Office of Management and Budget (OMB) for review and approval. The nature of the information collection is described as well as its expected burden. The
Comments must be submitted on or before November 13, 2007.
Mitch Hudson, Maritime Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: 202-366-9373; or e-mail:
Maritime Administration (MARAD).
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: MARAD Desk Officer.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel LIQUID BLUE.
As authorized by Pub. L. 105-383 and Pub. L. 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-29366 at
Submit comments on or before November 13, 2007.
Comments should refer to docket number MARAD-2007-29366. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel LIQUID BLUE is:
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
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel SEA MIST.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-0004 at
Submit comments on or before November 13, 2007.
Comments should refer to docket number MARAD-2007-0004. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel Sea Mist is:
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
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel TRILOGY.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-29365 at
Submit comments on or before November 13, 2007.
Comments should refer to docket number MARAD-2007-29365. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel Trilogy is:
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
By order of the Maritime Administrator.
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The proposed information collection request (ICR) described below has been submitted to the Office of Management and Budget (OMB) for review and approval, as required by the Paperwork Reduction Act of 1995. OTS is soliciting public comments on the proposal.
Submit written comments on or before November 13, 2007. A copy of this ICR, with applicable supporting documentation, can be obtained from
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Office of Information and Regulatory Affairs, Attention: Desk Officer for OTS, U.S. Office of Management and Budget, 725 17th Street, NW., Room 10235, Washington, DC 20503, or by fax to (202) 395-6974; and Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, by fax to (202) 906-6518, or by e-mail to
For further information or to obtain a copy of the submission to OMB, please contact Ira L. Mills at,
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.
Department of Veterans Affairs.
Notice of intent to dispose of property to an enhanced-use lessee.
The Secretary of the Department of Veterans Affairs (VA) intends to dispose of approximately 85.4 acres of property at the VA Medical Center in North Chicago, Illinois, which currently is being leased by the Rosalind Franklin University of Medicine and Science (RFUMS). The Secretary, in accordance with 38 U.S.C. section 8164, has determined that VA no longer needs such property and that—with the exception of retaining ownership over certain existing utility systems, lines, and conduits; water lines located within its boundary; and a 1-acre parcel used as a parking lot, a transfer to RFUMS of all right, title, and interest of the United States in the property under section 8164 would be in the best interests of VA.
Vanessa Ellington, Office of Asset Enterprise Management (004B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8192.
The subject property consists of approximately 85.4 acres of land and improvements leased to RFUMS under a 75-year enhanced-use lease executed
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to John Hicks, Division of Property Management, Program Support Center, HHS, room 5B-17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Landholding Agency: Army
Department of Energy.
Final rule.
The Department of Energy (DOE) has determined that energy conservation standards for liquid-immersed and medium-voltage, dry-type distribution transformers will result in significant conservation of energy, are technologically feasible, and are economically justified. On this basis, DOE is today adopting energy conservation standards for liquid-immersed and medium-voltage, dry-type distribution transformers. Today's rule does not set energy conservation standards for underground mining distribution transformers.
For access to the docket to read background documents, the technical support document (TSD), transcripts of the public meetings in this proceeding, or comments received, visit the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards-Jones at the above telephone number for additional information regarding visiting the Resource Room. Please note: DOE's Freedom of Information Reading Room (formerly Room 1E-190 at the Forrestal Building) no longer houses rulemaking materials. You may also obtain copies of certain previous rulemaking documents from this proceeding (i.e., Framework Document, advance notice of proposed rulemaking (ANOPR), notice of proposed rulemaking (NOPR or proposed rule)), draft analyses, public meeting materials, and related test procedure documents from the Office of Energy Efficiency and Renewable Energy's Web site at
Antonio Bouza, Project Manager, Energy Conservation Standards for Distribution Transformers, Docket No. EE-RM/STD-00-550, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-4563, e-mail:
Francine Pinto, Esq., U.S. Department of Energy, Office of General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-7432, e-mail:
The Energy Policy and Conservation Act (EPCA), as amended, directs the Department of Energy (DOE) to adopt energy conservation standards for those distribution transformers for which standards would be technologically feasible and economically justified, and would result in significant energy savings. (42 U.S.C. 6317(a)(2)) The standards in today's final rule, which apply to liquid-immersed and medium-voltage, dry-type distribution transformers, satisfy these requirements and will achieve the maximum improvements in energy efficiency that are technologically feasible and economically justified. In the advance notice of proposed rulemaking (ANOPR) in this proceeding, DOE had also addressed standards for low-voltage, dry-type distribution transformers. 69 FR 45376 (July 29, 2004). However, the Energy Policy Act of 2005, Public Law 109-58, (EPACT 2005) amended EPCA to establish energy conservation standards for those transformers. (EPACT 2005, Section 135(c); 42 U.S.C. 6295(y)) Therefore, DOE removed low-voltage, dry-type distribution transformers from the scope of this rulemaking.
The standards established in this final rule are minimum efficiency levels. Tables I.1 and I.2 show the standard levels DOE is adopting today. These standards will apply to liquid-immersed and medium-voltage, dry-type distribution transformers manufactured for sale in the United States, or imported to the United States, on or after January 1, 2010. As discussed in section V.C.2 of this notice, any transformers whose kVA
The minimum efficiency levels in today's standards can be met by distribution transformer designs that already are available in the market. DOE expects that distribution transformer designs that incorporate different voltages and other design variations will still be able to be manufactured under the new standards, maintaining all the features and utility found in commercially available products today.
In analyzing the benefits and burdens of potential standards, DOE represented the range of possible distribution transformer costs and features by representative engineering design lines. Five design lines (DL1, DL2, DL3, DL4, and DL5) represent the range of features and costs for liquid-immersed transformers, while five design lines (DL9, DL10, DL11, DL12, and DL13) represent medium-voltage, dry-type transformers. Three design lines (DL6, DL7, and DL8) represented low-voltage dry-type transformers and were included in DOE's ANOPR analysis. But as indicated above, DOE subsequently removed these transformers from this rulemaking when the Energy Policy Act of 2005 established minimum efficiency levels for them.
On average, liquid-immersed transformers are already relatively efficient. The annual operating costs for such transformers range from approximately
The economic impacts on transformer consumers (i.e., the average life-cycle cost (LCC) savings) are positive for the new energy efficiency levels established by this rule. For liquid-immersed transformers, an increase in first costs of 6-12 percent is accompanied by a decrease in operating costs of 15-23 percent, corresponding to a similar drop in electrical losses. For medium-voltage, dry-type transformers, an increase in first costs of 3-13 percent is accompanied by a decrease in losses and operating costs of 9-26 percent. On average, the new standards provides net life-cycle benefits for all categories of distribution transformers, although some liquid-immersed transformers with smaller loads and relatively low electricity cost are likely to incur a net cost from the new standards. For liquid-immersed transformers, DOE estimates that approximately 25% of the market incurs a net life-cycle cost from the standard while 75% of the market is either not affected or incurs a net benefit. DOE also investigated how these standards might affect municipal utilities and rural electric cooperatives. While the benefits are positive for municipal utilities, a majority of smaller, pole-mounted transformers for rural electric cooperatives will incur a net life-cycle cost. However, because of a relatively large per-transformer reduction in life-cycle cost for some non-evaluating rural electric cooperatives (i.e., those that do not take into consideration the cost of transformer losses when choosing a transformer) rural electric cooperatives as a whole receive an average life-cycle cost benefit.
Using a real corporate discount rate of 8.9 percent, DOE estimated the industry net present values (INPV) of the liquid-immersed and medium-voltage, dry-type distribution transformer industries to be $609 million and $36 million, respectively, in 2006$. DOE expects the impact of today's standards on the INPV of the liquid-immersed transformer industry to be between an eight percent loss and an eight percent increase (−$47 million to $47 million). DOE expects the impact of today's standards on the INPV of the medium-voltage, dry-type transformer industry to be between a 15 percent loss and a 9 percent loss (−$5.2 million to −$3.2 million). Based on DOE's analysis and interviews with distribution transformer manufacturers, DOE expects minimal plant closings or loss of employment as a result of the standards promulgated today.
The standards will provide significant benefits to the Nation. DOE estimates the standards will save approximately 2.74 quads (quadrillion (10
By 2038, DOE expects the energy savings from the standards to eliminate the need for approximately six new 400-megawatt combined-cycle gas turbine power plants. The total energy savings from the standard will result in cumulative greenhouse gas emission reductions of approximately 238 million tons (Mt) of carbon dioxide (CO
The national net present value (NPV) of the standards is $1.39 billion using a seven percent discount rate and $7.8 billion using a three percent discount rate, cumulative from 2010 to 2073 in 2006$. This is the estimated total value of future energy savings minus the estimated increased equipment costs, discounted to the year 2007. The benefits and costs of the standard can also be expressed in terms of annualized 2006$ values over the forecast period 2010 through 2038.
Using a seven percent discount rate for the annualized cost analysis, the cost of the standard is $463 million per year in increased equipment and installation costs while the annualized benefits are $602 million per year in reduced equipment operating costs. Using a three percent discount rate, the cost of the standard is $460 million per year while the benefits of today's standard are $904 million per year.
DOE concludes that the benefits (energy savings, transformer consumer LCC savings, national NPV increases, and emissions reductions) to the Nation of the standards outweigh their costs (loss of manufacturer INPV and transformer consumer LCC increases for some users of distribution transformers). DOE concludes that today's standards for liquid-immersed and medium-voltage, dry-type transformers are technologically feasible and economically justified, and will result in significant energy savings. At present, both liquid-immersed and medium-voltage, dry-type transformers that meet the new standard levels are commercially available.
Title III of EPCA sets forth a variety of provisions designed to improve energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products other than Automobiles. Part C of Title III (42 U.S.C. 6311-6317) establishes a similar program for “Certain Industrial Equipment,” and includes distribution transformers, the subject of this rulemaking. DOE publishes today's final rule pursuant to Part C of Title III, which provides for test procedures, labeling, and energy conservation standards for distribution transformers and certain other products, and authorizes DOE to require information and reports from manufacturers. The distribution transformer test procedure appears in Title 10 Code of Federal Regulations (CFR) Part 431, Subpart K, Appendix A.
EPCA contains criteria for prescribing new or amended energy conservation standards. DOE must prescribe standards only for those distribution transformers for which DOE: (1) Has determined that standards would be technologically feasible and economically justified and would result in significant energy savings; and (2) has prescribed test procedures. (42 U.S.C. 6317(a)(2)) Moreover, DOE analyzed whether today's standards for distribution transformers will achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (See 42 U.S.C. 6295(o)(2)(A), 6316(a), and 6317(a) and (c))
In addition, DOE decided whether each of today's standards for distribution transformers is economically justified, after receiving comments on the proposed standards, by determining whether the benefits of each standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors that are set forth in 42 U.S.C. 6295(o)(2)(B)(i):
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the imposition of the standard;
(3) The total projected amount of energy savings likely to result directly from the imposition of the standard;
(4) Any lessening of the utility or the performance of the products likely to result from the imposition of the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;
(6) The need for national energy conservation; and
(7) Other factors the Secretary considers relevant.
In developing today's energy conservation standards, DOE also has applied certain other provisions of 42 U.S.C. 6295. First, DOE would not prescribe a standard for distribution transformers if interested persons established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any type (or class) of this equipment with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available at the time of the Secretary's finding. (See 42 U.S.C. 6295(o)(4))
Second, DOE has applied 42 U.S.C. 6295(o)(2)(B)(iii), which establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that “the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy * * * savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure * * *.” The rebuttable presumption test is an alternative path to establishing economic justification.
Third, DOE may specify a different standard level than that which applies generally to a type or class of equipment for any group of products “which have the same function or intended use, if * * * products within such group—(A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard” than applies or will apply to the other products. (See 42 U.S.C. 6295(q)(1)) Any rule prescribing such a standard includes an explanation of the basis on which DOE establishes such higher or lower level. (See 42 U.S.C. 6295(q)(2))
Federal energy efficiency requirements for equipment covered by 42 U.S.C. 6317 generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c) and 42 U.S.C. 6316(a)) DOE can, however, grant waivers of preemption for particular State laws or regulations,
Presently, there are no national energy conservation standards for the liquid-immersed and medium-voltage, dry-type distribution transformers covered by this rulemaking. However, on August 8, 2005, EPACT 2005 amended EPCA to establish energy conservation standards for low-voltage, dry-type distribution transformers.
DOE incorporated these standards into its regulations, along with the standards for several other types of products and equipment, in a Final Rule published on October 18, 2005. 70 FR 60407, 60416-60417.
On October 22, 1997, the Secretary of Energy published a notice stating that DOE “has determined, based on the best information currently available, that energy conservation standards for electric distribution transformers are technologically feasible, economically justified and would result in significant energy savings.” 62 FR 54809. The Secretary based this determination, in part, on analyses conducted by DOE's Oak Ridge National Laboratory (ORNL). The two reports containing these analyses—
As a result of its positive determination, in 2000 DOE developed the Framework Document for Distribution Transformer Energy Conservation Standards Rulemaking, which described the approaches DOE anticipated using to develop energy conservation standards for distribution transformers. This document is also available on the above-referenced DOE website. On November 1, 2000, DOE held a public meeting to discuss the proposed analytical framework. Manufacturers, trade associations, electric utilities, energy efficiency organizations, regulators, and other interested parties attended this meeting. Stakeholders also submitted written comments on the Framework Document addressing a range of issues.
In the first quarter of 2002, prior to issuing its ANOPR, DOE met with manufacturers of liquid-immersed and dry-type distribution transformers to solicit feedback on a draft engineering analysis report DOE had published containing a proposed analytical structure for the engineering analysis and some initial transformer designs. In addition, DOE also posted draft screening, engineering, and LCC analysis reports on its website, and held a live Webcast on the LCC analysis on October 17, 2002.
On August 5, 2005, DOE posted its draft NOPR analysis for the liquid-immersed and medium-voltage, dry-type distribution transformers on its Web site for early public review, along with spreadsheets for several of these analyses. This early publication of the draft NOPR analysis included the draft engineering analysis, LCC analysis, national impact analysis, and manufacturer impact analysis (MIA), and the draft TSD chapters associated with each of these analyses. The purpose of publishing these four draft analyses was to give stakeholders an opportunity to review the analyses and prepare recommendations for DOE as to the appropriate standard levels.
On April 27, 2006, DOE published its Final Rule on Test Procedures for
On July 25, 2006, DOE published a NOPR proposing compliance certification procedures for a range of consumer products and commercial and industrial equipment, including distribution transformers. This NOPR included both a compliance statement and a certification report for distribution transformer manufacturers. 71 FR 42178. DOE is currently preparing its final rule for that proceeding, which will establish requirements around the compliance statement and certification report for distribution transformers and other products and equipment.
On August 4, 2006, DOE published the distribution transformer energy conservation standards NOPR. 71 FR 44355. In conjunction with the NOPR, DOE also published on its Web site the complete TSD for the proposed rule, which incorporated the final analyses DOE conducted and technical documentation for each analysis. The TSD included the engineering analysis spreadsheets, the LCC spreadsheet, the national impact analysis spreadsheet, and the MIA spreadsheet—all of which are available on DOE's Web site.
In the NOPR, DOE identified seven issues on which it was particularly interested in receiving comments and views of interested parties. 71 FR 44406.
On February 9, 2007, DOE issued a notice of data availability and request for comments (NODA). 72 FR 6186. DOE published this notice in response to stakeholders who had commented, in response to the NOPR, that DOE's proposed standards might prevent or render impractical the replacement of distribution transformers in certain space-constrained (e.g., vault) installations. In the NODA, DOE sought comment on whether it should include in the LCC analysis potential costs related to size constraints of transformers installed in vaults. In the NODA, DOE outlined different approaches as to how it might account for additional installation costs for these space-constrained applications. In addition, DOE also published the NODA in response to certain stakeholders who commented that DOE should address the consistency issues for liquid-immersed transformers in the table of efficiency standards. DOE also requested comments on linking efficiency levels for three-phase liquid-immersed units with those of single-phase units. Specifically, in the NODA DOE discussed how it was inclined to consider a final standard that is based on efficiency levels that are based on TSL 2 and TSL 3 for three-phase units and TSLs 2, 3 and 4 for single-phase units. 72 FR 6189. Based on comments on the August 2006 proposed rule and the February 2007, NODA, DOE created new TSLs, including TSL B, which is, generally speaking, a combination of TSL 2 for three-phase units and TSL 3 for single-phase units. DOE received more than 20 written comments in response to this NODA on both the space constraint issue and how to set final efficiency ratings, which are discussed in the following sections of this final rule.
In response to the NODA, Cooper Power Systems commented that they were concerned that the NODA did not indicate any specifics regarding the proposed TSL levels for any design lines. Cooper states that DOE needs to publish a new proposed table that represents the mix of efficiency levels being considered in order for interested parties to provide solid feedback on the impact of these proposals. (Cooper, No. 175 at p. 1)
Section 7(c) of the Process Rule (
There are distribution transformers in the market at all of the efficiency levels prescribed in today's final rule. Therefore, DOE believes all of the efficiency levels adopted by today's final rule are technologically feasible.
Applying the requirements of 42 U.S.C. 6295(p)(2), and as discussed in the proposed rule, DOE determined “the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible.” 71 FR 44362. DOE determined the “max-tech” efficiency levels in the engineering analysis (see Chapter 5 in the TSD) and then used these highest efficiency designs to establish the max-tech levels for the LCC analysis (see Chapter 8 in the TSD). DOE then scaled these max-tech efficiencies to the other kVA ratings within a given design line, establishing max-tech efficiencies for all the distribution transformer kVA ratings.
DOE forecasted energy savings in its national energy savings (NES) analysis, through the use of an NES spreadsheet tool, as discussed in the proposed rule. 71 FR 44361, 44363, 44380-44381, 44384, 44393, 44401.
One of the criteria that govern DOE's adoption of standards for distribution transformers is that the standard must result in “significant” energy savings. (42 U.S.C. 6317(a)) While EPCA does not define the term “significant,” a U.S. Court of Appeals, in
As noted earlier, EPCA provides seven factors for DOE to evaluate in determining whether an energy conservation standard for distribution transformers is economically justified. The following discussion explains how DOE has addressed each of these seven
DOE considered the economic impact of the standard on commercial consumers and manufacturers, as discussed in the proposed rule. 71 FR 44361, 44363-44364, 44367, 44376-44277, 44379, 44381-44384, 44385-44389, 44390-44393, 44394, 44396-44400, 44401-44404. DOE updated the analyses to incorporate more recent material price information. One significant change to the MIA was the inclusion of lower conversion-capital expenditure estimates for those trial standard levels (TSLs) which require or otherwise trigger manufacturers to switch to amorphous core technology. DOE based the revised estimates on information provided by industry experts (see Section V.A.3 below).
DOE considered life-cycle costs of distribution transformers, as discussed in the proposed rule. 71 FR 44362-44363, 44371-44376, 44378-44379, 44385-44390, 44395-44396. It calculated the sum of the purchase price and the operating expense—discounted over the lifetime of the equipment—to estimate the range in LCC benefits that commercial consumers would expect to achieve due to the new standards. DOE also examined the economic justification for its proposed standards for distribution transformers by applying section 325(o)(2)(B)(iii) of EPCA (42 U.S.C. 6295(o)(2)(B)(iii)), which provides that there is a rebuttable presumption that an energy conservation standard is economically justified if the increased installed cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard, as calculated under the applicable DOE test procedure. 71 FR 44388-44389. Some of the standard levels DOE is adopting today satisfy the rebuttable presumption test but others do not. However, DOE determined all of them to be economically justified based on the above-described analyses.
While significant conservation of energy is a separate statutory requirement for imposing an energy conservation standard, in determining the economic justification of a standard, DOE considers the total projected energy savings that are expected to result directly from the standard. (See 42 U.S.C. 6295(o)(2)(B)(i)(III)) DOE used the NES spreadsheet results in its consideration of total projected savings. 71 FR 44361, 44363, 44380-44381, 44384, 44393, 44401.
In selecting today's standard levels, DOE avoided new standards for distribution transformers that lessen the utility or performance of the equipment under consideration in this rulemaking. (See 42 U.S.C. 6295(o)(2)(B)(i)(IV)) DOE sought to capture in the economic analysis the impact of any increase in transformer size or weight associated with efficiency improvements. Specifically when selecting the new standards, DOE considered the installation costs for pole-mounted transformers and vault transformers that may be incurred with larger, heavier, more efficient transformers. 71 FR 44363, 44394. In addition, DOE recognizes that underground mining transformers are subject to unique and extreme dimensional constraints which impact the efficiency and performance of these distribution transformers. Therefore, DOE is establishing a separate product class for underground mining transformers. In the future, DOE may consider establishing energy conservation standards for underground mining transformers. DOE is not setting a standard for underground mining transformers in today's final rule, rather it is reserving a section and intends to develop analysis that would establish an appropriate energy conservation standard for underground mining transformers in the future. Finally, when selecting today's standard, DOE carefully reviewed the results of an engineering sensitivity analysis on primary winding voltages. This sensitivity analysis considers higher primary voltages than those used in the representative units studied in the engineering analysis. This sensitivity analysis enables DOE to evaluate the impact on cost and efficiency associated with the final rule TSLs. (see Section V.A.1.a in this notice, and TSD Appendix 5D) Thus, the analysis in today's final rule takes into consideration the additional costs associated with space-constrained pole-mounted and vault transformers, and ensures that higher primary voltages are not eliminated from the market. Based on DOE's engineering analysis, DOE concludes that more efficient pole-mounted and vault transformers are technologically feasible. However, in some instances, DOE believes that transformer poles and vaults may need to be replaced to accommodate the more efficient transformers as a result of today's final rule. DOE included increased installation costs of such pole-mounted and vault transformer in its analysis. In this way, DOE has captured the costs and benefits of replacement pole-mounted and vault transformers. Details of pole and vault replacement cost estimation methods are provided in sections 7.3.1 and 7.3.5 of TSD Chapter 7.
DOE considers any lessening of competition that is likely to result from standards. Accordingly, as discussed in the proposed rule, 71 FR 44363-44364, 44394, at DOE's request, the Department of Justice (DOJ) reviewed the proposed standard level (i.e., the NOPR) and transmitted to the Secretary a written determination of the impact of any lessening of competition likely to result, together with an analysis of the nature and extent of such impact. (See 42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) DOE addressed the issues raised in the Attorney General's response to the NOPR, as discussed in section VI.C.5 of today's final rule. The letter DOJ submitted to DOE in response to the NOPR appears at the end of this notice of final rulemaking.
Today's final rule, which follows publication of the NODA, adopts a standard level that is higher than the standard proposed in the NOPR for certain liquid-immersed distribution transformers. DOJ was provided draft copies of the notice of final rulemaking and the final rule TSD for review. The Attorney General did not express any concerns about impacts associated with today's final rule. A copy of Attorney General's letter to DOE in response to the final rule also appears at the end of this notice of final rulemaking.
The Secretary recognizes that energy conservation benefits the Nation in several important ways. The non-monetary benefits of a standard are likely to be reflected in improvements to the security of the Nation's energy system. In addition, reductions in the overall demand for energy will result in reduced costs for maintaining reliability of the Nation's electricity system. Finally, today's standards will likely result in reductions in greenhouse gas emissions. As discussed in the proposed rule, DOE has considered these factors in adopting today's standards. 71 FR 44364, 44384, 44394-44395, 44398-44400. (See 42 U.S.C. 6295(o)(2)(B)(i)(VI))
The Secretary of Energy, in determining whether a standard is economically justified, considers any other factors the Secretary deems to be relevant. (See 42 U.S.C. 6295(o)(2)(B)(i)(VII)) The results of the utility impact analysis, and the analysis of national employment impacts are “other factors” that the Secretary took into consideration. In addition, for this rulemaking, the Secretary also took into consideration stakeholder concerns about the increasing cost of raw materials for building transformers, the volatility of material prices, and the cumulative effect of material price increases on the transformer industry, as discussed in the proposed rule. 71 FR 44364, 44395. Since issuance of the NOPR, DOE conducted two engineering sensitivity evaluations—one considering current (2006) material prices and a second considering transformers with alternative primary voltages that have higher insulation requirements (and are therefore more expensive and less efficient to manufacture). Also, as it had done in the proposed rule, DOE conducted LCC sensitivities, evaluating engineering analysis cost-efficiency curves generated using a high material price scenario
DOE used a number of analytical tools that it previously developed and adapted for use in this rulemaking. The first tool is a spreadsheet that calculates LCC and payback period (PBP). The second tool calculates NES and national NPV. DOE also used the Government Regulatory Impact Model (GRIM), among other methods, in its MIA. Finally, DOE developed an approach using the National Energy Modeling System (NEMS) to estimate impacts of distribution transformer energy conservation standards on electric utilities and the environment.
Regarding the analytical methodology, DOE has continued to use the spreadsheets and approaches explained in the proposed rule. 71 FR 44364-44384. It revised them, and applied them again to develop the analysis for this final rule. The tables below summarize all the major NOPR inputs to the LCC and PBP analysis, the Shipments Analysis and the National Impact Analysis, and whether those inputs were revised for the final rule. In addition to these updates, DOE also updated the material prices it used for the engineering analysis, as discussed in TSD Chapter 5.
The methodology DOE followed in the market and technology assessment was described in previous notices and is discussed in TSD Chapter 3. This is the section of the analysis where DOE typically discusses issues on the scope of coverage. DOE received a few comments on this topic, including comments regarding mining transformers, less-flammable liquid-immersed transformers, refurbished transformers, and the waiver process. These comments are discussed in the following sub-sections.
The definition of a distribution transformer and thereby the scope of coverage of this rulemaking was finalized in the test procedure final rule, published on April 27, 2006. 71 FR 24975-24982, 24995-24997. In that notice, DOE indicated that comments supporting an exclusion for mining transformers did not provide sufficient data and information on mining transformers to warrant an exclusion or separate treatment. 71 FR 24980-24981. In the August 2006 NOPR, DOE addressed the issue of mining transformers in the preamble. DOE decided not to exempt mining transformers under 42 U.S.C. 6291(35)(B)(iii)(I), noting that DOE lacked specific information and data on whether these transformers were likely to be used in general purpose applications or whether significant energy savings would result from applying standards to them. 71 FR 44365-44366.
DOE received several comments calling for mining transformers to be exempt from any national efficiency standard. The Alaska Miners Association (AMA), Arch Coal, Brooks Run Mining (BRM), Control Transformer, Federal Pacific Transformer (FPT), HVOLT, NEMA, the National Mining Association (NMA), the Ohio Valley Coal Company (OVCC), Peabody Energy Corporation (PEC), PEMCO Corporation (PEMCO), and SMC Electrical Products (SMC), all called for mining transformers to be exempt from the national efficiency standard. These stakeholders identified a number of reasons for this request, including safety, minimal impact on energy savings, appropriateness of the representative efficiency rating loading point, and lack of guidance in the test procedure for measuring the efficiency of mining transformers that have more than one secondary output connection. (AMA, No. 118 at p. 1; Arch Coal, No. 115 at p. 1; BRM, No. 112 at p. 1; Control Transformer, No. 142 at p. 1; FPT, No. 102 at pp. 1-3; Public Meeting Transcript, No. 108.6 at p. 131; HVOLT, No. 141 at p. 5; NEMA, No. 125 at p. 3; NMA, No. 116 at pp. 1-2; OVCC, No. 151 at p. 1; PEC, No. 146 at p. 1; PEMCO, No. 130 at p. 2; SMC, No. 124 at pp. 1-2) FPT also submitted several mining transformer designs they prepared to support its request to exempt mining transformers from the standard. (FPT, No. 114 at pp. 1-33) Howard Industries indicated that it would agree that mining transformers should be exempted if such transformers are “exactly defined.” (Howard, No. 143 at p. 5)
NMA and the Ohio Valley Coal Company (OVCC) commented that safety was a concern and a reason for exempting mining transformers from Federal efficiency standards. NMA commented that size constraints and the need to move the transformers as the mining process advances necessitate special designs. NMA also stated that DOE needs to consider safety issues raised by the need to move transformers in mining operations. (NMA, No. 116 at pp. 1-2) OVCC also noted the importance of mining transformers being as small as possible, in part to prevent safety problems as these transformers have to be moved frequently. (OVCC, No. 151 at p. 1)
Stakeholders also commented on the fact that they did not believe significant energy savings would result from DOE covering and regulating mining transformers. (Arch Coal, No. 115 at p. 1) AMA commented that mining transformers should be excluded based on the very large impact on the cost of equipment that will be incurred under standards and that this exclusion of mining transformers would have a minimal impact on energy savings. (AMA, No. 118 at pp. 1-2) NEMA commented that mining transformers account for considerably less than one percent of all distribution transformers, and that they are part of the medium-voltage, dry-type group of distribution transformers which has far less significant energy savings opportunities than liquid-immersed transformers. (NEMA, No. 125 at p. 3) Federal Pacific estimated that, annually, the total market of mining transformers is approximately 969.1 megavolt-amperes (MVA), or about 1.15 percent of total
Arch Coal commented that mining transformers have large cores, and thus higher core losses when compared to general purpose distribution transformers. This puts mining transformers at a disadvantage for achieving efficiency levels measured at 35 percent and 50 percent of rated nameplate capacity. (Arch Coal, No. 115 at p. 1) SMC Electrical Products commented that the smaller heights and lower-than-typical impedance of mining transformers mean they contain more core steel and have increased losses when measured at 50 percent of nameplate load. (SMC, No. 124 at pp. 1-2) Control Transformer commented that mining transformers are usually size constrained (normally in the height), and therefore they have higher core losses than taller (standard) transformers. The core loss constitutes a critical portion of the efficiency rating, and may make the customer's dimensional constraints difficult, if not impossible, to achieve. Control Transformer also commented that very often impedance requirements are placed on these transformers, which adds another constraint to the design. (Control Transformer, No. 142 at p. 1) However, FPT commented at the workshop that it is possible to make mining transformers more efficient without sacrificing size. FPT notes that problems occur when the standard levels become really high, but they believe there might be some standard level that would be appropriate for mining transformers. (Public Meeting Transcript, No. 108.6 at p. 253) FPT also commented that mining transformers have different loading requirements than typical distribution transformers, and their loading requirements are dependent on the application. (Public Meeting Transcript, No. 108.6 at pp. 245 and 255) HVOLT commented that mining transformers are used at full load, and therefore may not be able to meet certain efficiency levels, when measured at lower loading points. (Public Meeting Transcript, No. 108.6 at p. 255) PEMCO Corporation estimates that mining transformers have loading of 100 percent or better. (Public Meeting Transcript, No. 108.6 at p. 255) However, one mining company, OVCC, commented that its transformers are lightly loaded. It noted that one of its mines has 30 mega-volt amperes (MVA) of dry-type transformer capacity installed, but only has an electrical demand of 7 MVA—meaning its transformers are lightly loaded and therefore would receive less benefit from mandatory energy efficiency standards. (OVCC, No. 151 at p. 1)
Finally, the Department of Justice (DOJ), commented that it was concerned that the proposed standard level may adversely affect competition with respect to distribution transformers used in industries, such as underground coal mining. Consistent with stakeholders commenting on the proposed rule, DOJ highlighted the dimensional constraints imposed on mining transformers due to the operating environments into which they are installed. DOJ is concerned that these constraints contribute to higher costs than would otherwise be associated with transformers not subject to the same dimensional constraints. DOJ urged DOE to create an exception for distribution transformers used in industries with space constraints. (DOJ, No. 157 at p. 2)
In comments requesting that DOE provide an exemption for mining transformers, some comments referred simply to ‘mining transformers’, while other comments referred more specifically to ‘underground mining transformers.’ Considering the operating environments of these two types of distribution transformers, DOE does not believe that those transformers used in above-ground or open-pit mining operations are subject to the same physical constraints as those transformers installed in underground mining operations. DOE understands that both underground and above-ground mining transformers are distribution transformers,
In the analysis for the proposed rule, DOE did not consider underground mining transformers as a separate product class. Rather, they were considered with all other medium-voltage dry-type transformers. However, based on comments received, DOE recognizes that underground mining transformers must comply with dimensional constraints, design requirements, and safety considerations that are different from those faced by other distribution transformers. DOE concludes that underground mining transformers have a distinct utility which limits the energy efficiency improvement potential possible for such distribution transformers. While more efficient underground mining transformers are technologically feasible, DOE does not have the data needed to estimate either the energy efficiency improvement potential or the cost of more efficient designs of underground mining transformers. DOE reviewed the underground mining transformer designs submitted (Federal Pacific, No. 114 at pp. 1-33) and the comments of a mining transformer design engineer at the public meeting (Public Meeting Transcript, No. 108.6 at p. 253), and believes that more efficient underground mining transformer designs are technologically feasible, but these comments didn't provide information on the extent of improvement possible. Furthermore, none of the comments requesting DOE exempt mining transformers provided an economic analysis demonstrating that efficiency standards for such transformers would not be cost-justified. Without engineering cost and efficiency data, DOE was not able to perform an analysis of the impacts of standards on underground mining transformers. Thus, DOE is not able to determine whether energy conservation standards for underground mining transformers are economically justified and would result in significant energy savings. Based on the above, DOE concludes that underground mining transformers are a class of medium-voltage dry-type distribution standards, and since DOE cannot determine whether standards would meet EPCA's statutory criteria, DOE is not setting standards for underground mining transformers at this time.
In order that stakeholders understand which mining transformers are subject to standards being promulgated today and which mining transformers would
DOE recognizes that this definition for underground mining distribution transformers could be refined if DOE initiates a rulemaking proceeding that evaluates energy conservation standards for underground mining distribution transformers.
Arch Coal commented that mining transformers often have more than one secondary connection, and multiple options for secondary connections, making it impossible to test using DOE's test procedure, which provides no guidance for testing of multiple secondary transformers. (Arch Coal, No. 115 at p. 1) SMC noted that DOE's test procedure does not indicate how multiple winding transformers should be loaded for the test. (SMC, No. 124 at pp. 1-2) FPT also noted that mining transformers are normally designed with multiple secondary windings at different kVA ratings. FPT indicated that DOE would need to provide clarification in the test procedure on the appropriate overall kVA rating and efficiency standard that would apply to these transformers with multiple secondary windings. (FPT, No. 102 at pp. 1-2)
DOE appreciates these comments and notes that while DOE's test procedure contains a test method that can be used for transformers with multiple secondary connections, it doesn't set the conditions for testing such units. Based on comments received, DOE understands that transformers with multiple secondary connections are used solely in underground mining operations. Since underground mining transformers are not subject to the standards adopted in today's final rule, DOE doesn't need to amend its test procedures to address this issue at this time. Before DOE establishes standards for underground mining transformers, DOE will amend the test procedures to specify the testing conditions for these units. DOE understands that the energy efficiency of distribution transformers is generally related to kVA, and that larger kVA units generally have a higher efficiency. DOE could, for example, require that underground mining transformers be tested at the secondary connection that yields the highest kVA value.
In the NOPR, DOE solicited comment on the issue of whether it should include liquid-immersed distribution transformers that are less flammable than most liquid-immersed models in the same product classes as medium-voltage, dry-type transformers. In developing and presenting the NOPR, DOE placed these less flammable liquid-immersed transformers in product classes with other liquid-immersed models, separate from the product classes for dry-type units (see TSD Chapter 3 for discussion on product classes).
Cooper Power Systems commented that the less-flammable, liquid-immersed transformers are used in the same applications as medium-voltage, dry-type transformers and therefore should be held to the same efficiency standards. (Public Meeting Transcript, No. 108.6 at p. 91; Cooper, No. 154 at p. 2) Howard Industries commented that less-flammable, liquid-immersed transformers should not be in the same product class as medium-voltage, dry-type transformers. Howard agrees that some less-flammable liquid-immersed transformers are used in some of the same applications as medium-voltage dry-type transformers, but many are used in applications that are not suitable for dry-type transformers and therefore would not be competing against a less efficient product. (Howard, No. 143 at p. 2)
DOE believes that the issue raised by Cooper and Howard is essentially whether less-flammable, liquid-immersed transformers should be treated as a separate class of liquid-immersed transformers and held to the same standard as medium voltage dry-type transformers.
EPCA provides DOE direction for establishing product classes. (42 U.S.C. 6295(q)(1)) In general, when evaluating and establishing energy efficiency standards, DOE classifies covered products into classes by: (a) The type of energy used; or (b) the capacity or other performance-related features that affect consumer utility or efficiency. In the July 2004 ANOPR, DOE concluded that the design of the transformer (i.e., dry-type or liquid-immersed) was a performance-related feature which affects the energy efficiency of the equipment. 69 FR 45385. Accordingly, DOE concludes that dry-type and liquid-immersed are separate classes of transformers.
In the August 2006 NOPR, DOE requested comment on its treatment of rebuilt or refurbished transformers and the potential impact on consumers, manufacturers, and national energy use
DOE received numerous comments on the topic of rebuilt and refurbished transformers, reflecting a diverse range of views on this issue. The American Council for an Energy-Efficient Economy (ACEEE), BBF & Associates (BBF), and the Copper Development Association (CDA) all recommended that DOE cover and regulate rebuilt transformers. (ACEEE, No. 127 at p. 10; BBF, No. 122 at p. 2; CDA, No. 111 at p. 2) ERMCO, FPT, Howard Industries, HVOLT, NEMA, and NRDC all recommended that DOE cover and regulate both rebuilt and refurbished transformers. (ERMCO, No. 96 at p. 2; FPT, No. 102 at p. 3; Public Meeting Transcript, No. 108.6 at p. 90; Public Meeting Transcript, No. 108.6 at p. 82; Howard, No. 143 at p. 2; Public Meeting Transcript, No. 108.6 at pp. 47, 80, and 87; HVOLT, No. 144 at p. 4; NEMA, No. 125 at p. 3; Public Meeting Transcript, No. 108.6 at p. 81; NRDC, No. 117 at p. 12)
ACEEE suggested regulating rebuilt transformers through a phased-in approach where rebuilt transformers become covered and regulated at a later time. (ACEEE, No. 127 at p. 10) NRDC commented that if DOE determines it does not have the authority under the current rule to regulate remanufactured transformers, then it should establish a new product class (remanufactured transformers) to regulate. NRDC encouraged DOE to regulate refurbished transformers, perhaps on the basis of organizing an informal, inclusive, consensus-seeking process. (Public Meeting Transcript, No. 108.6 at p. 81; NRDC, No. 117 at p. 12)
NEMA commented that it believes DOE should establish, in its final rule, a mechanism to monitor whether rebuilt or refurbished transformers are being used as a means to circumvent the efficiency standard, and stated that DOE should consider covering and regulating such units, if necessary. (NEMA, No. 125 at p. 3) The California Energy Commission (CEC) commented that it believes if a transformer is resold into the marketplace, then it can be regulated. However, if it is remanufactured internally, the standard would not apply. (Public Meeting Transcript, No. 108.6 at p. 82)
The Edison Electric Institute (EEI) supported DOE's proposal not to include used or refurbished transformers as part of the standard. EEI stated that EPCA does not include products that are used, refurbished, or rebuilt. It commented that any concern that customers will repair a product instead of buying a new, standards-compliant product applies to all regulated products, not just transformers. Furthermore, EEI noted that rebuilt transformers are only a small part of the market. (Public Meeting Transcript, No. 108.6 at p. 79) National Grid commented that it believes national standards should not apply to refurbished or rebuilt transformers. (NGrid, No. 138 at p. 2) Southern Company commented that it agrees DOE does not have the authority to regulate refurbished transformers. (Public Meeting Transcript, No. 108.6 at p. 64)
DOE has carefully considered its authority to establish energy conservation standards for rebuilt and refurbished distribution transformers in light of these comments, and, as discussed below, concludes that its authority does not extend to rebuilt and refurbished products. The relevant statutory provisions are discussed below, as well as the agency's rationale in reaching this conclusion.
Section 332 of EPCA provides that it shall be unlawful for any manufacturer or private labeler to distribute in commerce any
DOE believes that the definition of “new covered product” in section 332 is ambiguous on the question of whether a rebuilt or refurbished distribution transformer is subject to DOE's authority to set energy conservation standards. On this point, DOE notes that section 332 does not expressly provide that “new covered product” means a new product the title of which is transferred by the
There is no legislative history that reflects Congress's intent. However, DOE views the way Congress chose to define “new covered product” in EPCA as the strongest indicator that the term was not intended to apply to rebuilt or refurbished products. Specifically, it is unlikely that Congress would have made transfer of “title” the test of whether a product was “new” if it intended to cover rebuilt or refurbished products. The most reasonable interpretation of the statutory definition is that Congress intended that this provision apply to newly manufactured products the title of which has not passed for the first time to a consumer of the product. Such interpretation provides certainty and clarity for the regulated entities subject to these statutory provisions.
In addition, if DOE were to interpret “new covered product” as applying to other than
In terms of the existing distribution transformer market, DOE understands that rebuilt and refurbished transformers typically are either: (1) A product sold by the
As discussed above, for distribution transformers in particular, DOE understands that at present, rebuilt transformers are only a small part of today's market. If conditions change—for example, if rebuilt transformers become a larger share of the transformer market in response to the energy conservation standards adopted today (e.g., there is a significant increase in the purchase of rebuilt or refurbished transformers), DOE would consider appropriate action at that time.
The Energy Policy Act of 2005 (EPACT 2005) exempted “Uninterruptible Power System transformer” from the definition of “distribution transformer.” (42 U.S.C. 6291(35)(B)(ii)) DOE indicated when it adopted the EPACT 2005 efficiency requirements for low-voltage dry-type distribution transformers that it believed the name of this exemption contained a clerical error. 70 FR 60408 (October 18, 2005). DOE stated in the October 2005 final rule notice that it intended to make corrections where necessary to the statutory language, and gave the following example: “the definition of ``distribution transformer'' in section 135(a)(2)(B) of EPACT 2005 uses the term ``Uninterruptible Power System transformer'' instead of ``Uninterruptible Power Supply transformer.” DOE later codified the name change of UPS from ``System'' to ``Supply'' in the distribution transformer test procedure final rule, and it noted “DOE is amending its definition of distribution transformer to correct use of * * * UPS transformers [which] are commonly referred to as “Uninterruptible Power Supply transformers,” not “Uninterruptible Power System transformers.” 71 FR 24977 (April 27, 2006).
In the April 2006 final rule notice, DOE also adopted the following definition of an “uninterruptible power supply transformer”: “
In a comment submitted to DOE in this rulemaking, NEMA expressed its concern that DOE's revision of the term used for this exemption and the definition of the term, had introduced some confusion as to the applicability of this exemption. (NEMA, No. 174 at p. 2) NEMA requests that DOE change the name of this exemption from “Uninterruptible Power Supply transformer” back to the original name, as it appeared in EPACT 2005—“Uninterruptible Power System transformer.” (NEMA, No. 174 at p. 2) NEMA also asked that DOE revise the definition associated with uninterruptible power system transformers, to clarify that the exemption applies to transformers incorporated into uninterruptible power systems rather than supplying power to them. (NEMA, No. 174 at p. 2)
In the rulemaking in which it codified the exclusion of “Uninterruptible Power Supply transformer” from the definition of “distribution transformer,” DOE received no comments about either the exclusion or use of this term or DOE's definition of the term. In the supplemental notice of proposed rulemaking (SNOPR) in which it had proposed the exclusion, DOE stated that “an uninterruptible power supply transformer is not a distribution transformer” and that “[i]t is used as part of the electric supply system for sensitive equipment that cannot tolerate system interruptions or distortions, and counteracts such irregularities.” 69 FR 45505, 45512 (July 29, 2004). DOE sees no reason to modify the term “Uninterruptible Power Supply transformer” in its regulations, or to completely revise its definition of this term. Nonetheless, DOE recognizes that, in characterizing an uninterruptible power supply transformer as one that “supplies power to” an uninterruptible power system, 10 CFR 431.192, DOE's definition may be confusing and slightly inconsistent with its description in the SNOPR of this type of transformer. Therefore, to make the definition consistent with its expressed intent in the SNOPR, to which there was no objection, in today's rule DOE is clarifying its definition of “Uninterruptible Power Supply transformer” by replacing the phrase “supplies power to” with “is used within.” This modification does not expand or reduce the intended group of Uninterruptible Power Supply transformers that DOE wishes to exempt from its standard. Rather, this change provides greater clarity of the scope of this exemption.
For the engineering analysis, which established the relationship between cost and efficiency for certain distribution transformer kVA ratings considered in this rulemaking, DOE continued to use transformer design software developed for the rulemaking by Optimized Program Service (OPS). DOE verified the findings of this software by comparing designs during manufacturer interviews, and through a testing and teardown analysis of six transformers. Chapter 5 of the TSD contains detailed discussion on the
The LCC is the total customer cost over the life of the equipment, including purchase expense and operating costs (including energy expenditures and maintenance). To compute the LCC, DOE summed the installed price of a transformer and the discounted annual future operating costs over the lifetime of the equipment. The PBP is the change in purchase expense due to an increased efficiency standard divided by the change in first-year operating cost that results from the standard. DOE expresses PBP in years. The data inputs to the PBP calculation are the purchase expense (otherwise known as the total installed consumer cost or first cost) and the annual operating costs for each selected design. The inputs to the transformer purchase expense are the equipment price and the installation cost, with appropriate markups to reflect price increases as the transformer passes through the distribution channel. The inputs to the operating costs are the annual energy consumption and the electricity price. The PBP calculation uses the same inputs as the LCC analysis but, since it is a simple payback, the operating cost is for the year the standard takes effect, assumed to be 2010.
For each efficiency level DOE analyzed, the LCC analysis required input data for the total installed cost of the equipment, the operating cost, and the discount rate. Equipment price, installation cost, and baseline and standard design selection affect the installed cost of the equipment. Transformer loading, load growth, power factor, annual energy use and demand, electricity costs, electricity price trends, and maintenance costs affect the operating cost. The effective date of the standard, the discount rate, and the lifetime of equipment affect the calculation of the present value of annual operating cost savings from a proposed standard.
The following sections contain brief discussions of comments on the inputs and key assumptions of DOE's LCC analysis and explain how DOE took these comments into consideration.
Higher efficiency distribution transformers tend to be larger and heavier than less efficient designs. DOE therefore included the increased cost of installing larger, heavier transformers as a component of the first cost of more efficient transformers. In the NOPR, DOE presented the installation cost model and solicited comment from stakeholders. For details of the installation cost calculations, see TSD section 7.3.1.
In response to both the NOPR and the NODA, many stakeholders commented that it is important for DOE to take into consideration the costs and reliability impacts of installing transformers in space-constrained situations. ACEEE recommended that DOE factor into its calculations space-constraint costs, based on the percentage of transformers that will necessitate modification of the vaults in which they are installed and the average cost for such modifications. (Public Meeting Transcript, No. 108.6 at pp. 130-131) EEI noted that DOE's analysis should include a space occupancy factor, although it might be hard to estimate. (Public Meeting Transcript, No. 108.6 at p. 129) In addition, EEI expressed concern regarding size and weight implications for the reliability and cost of the transformer, especially for TSL4, noting that, for pole-mounted transformers, more weight will increase the stress on poles and noting that manufacturers doubt that they can produce all equipment needed at TSL4. (Public Meeting Transcript, No. 108.6 at p. 31) HVOLT recommended that the analysis account for volume and weight in a mathematical equation to account for space occupancy costs. (Public Meeting Transcript, No. 108.6 at p. 129) NEMA commented that, with higher standards, manufacturers may use lower quality steel and switch from copper to aluminum, and that this may increase the weight and/or size of transformers. (Public Meeting Transcript, No. 108.6 at p. 132) Metglas commented that transformers are smaller and lighter than those made 30-40 years ago, and stated that there will not be an issue with size and weight of amorphous core transformers. (Metglas, No. 144 at p. 3)
DOE responded to the comments raised regarding space-constraint implications for installation costs by formulating a method and a cost equation for estimating the economic impacts of space constraints and issuing a NODA that solicited comments on the method and equations proposed for evaluating such costs. 72 FR 6186-6190. DOE then performed a subgroup analysis of space-constrained vault transformers, for which DOE modeled potential standards-induced vault modification costs with an appropriate equation that included both fixed and volume-dependent variable components. The results of this analysis are detailed in Chapter 11 of the TSD, and DOE took these costs into consideration in the selection of the standard level for this rule.
A major factor in estimating the economic impact of a proposed standard is the selection of transformer designs in the base case and standards case scenarios. A key issue in the selection process is the degree to which transformer purchasers take into consideration the cost of transformer losses (A and B factors) when choosing a transformer (i.e., whether they “evaluate”), both before and after the implementation of a standard. The purchase-decision model in the LCC spreadsheet selects which of the hundreds of designs in the engineering database are likely to be selected by transformer purchasers. The LCC transformer selection process is discussed in detail in TSD Chapter 8, section 8.2.
DOE received several comments regarding the fraction of transformer purchasers that evaluate distribution transformer electrical losses before purchase and how transformer purchasers evaluate these losses. HVOLT estimates that 20 percent of the market for medium-voltage, dry-type transformers evaluates and places a value of $3.00/watt on loss evaluation, while the market share of transformers meeting TP 1 levels for liquid-immersed transformers is 75 to 80 percent. (Public Meeting Transcript, No. 108.6 at p. 216) NEMA commented that 10 years ago there was a trend where customers bought cheaper and less efficient transformers every year due to less loss evaluation, but that the market has turned around and now an increasing percentage of customers are buying the more efficient TP 1 transformers. NEMA also noted that the shipments data it has submitted over the years to DOE have shown this changing trend. (Public Meeting Transcript, No. 108.6 at p. 220; NEMA, No. 125 at p. 3)
In response to these comments, DOE developed its baseline market model using the most detailed and reliable data available. This included data that NEMA supplied providing TP 1 transformer market shares, in addition to publicly available data regarding evaluation parameters used by distribution transformer purchasers. For the final rule, DOE set average A and B values of 3.85 and 1.16 $/watt respectively for design lines 1, 2 and 4, and average A and B values of 3.85 and 1.93 $/watt for design lines 3 and 5. These slight adjustments to the
Transformer loading is an important factor in determining which types of transformer designs will deliver a specified efficiency, and for calculating transformer losses. Transformer losses have two components: no-load losses and load losses. No-load losses are independent of the load on the transformer, while load losses depend approximately on the square of the transformer loading. Because load losses increase with the square of the loading, there is a particular concern that, during times of peak system load, load losses can impact system capacity costs and reliability. For the final rule, DOE made a slight technical adjustment to the loading model for liquid-immersed transformers by relying on the more comprehensive 1995 Commercial Building Energy Consumption Survey data for the relationship between peak and average loads as a function of transformer size rather than the older, regionally specific End-Use Load and Consumer Assessment Program data used in the NOPR analysis. TSD Chapter 6 provides details of DOE's transformer loading models.
Stakeholders appeared to generally agree with DOE's technical approach to evaluating loading, although HVOLT commented that DOE should mathematically evaluate the loading of single-phase and three-phase transformers the same way. (Public Meeting Transcript, No. 108.6 at p. 151)
Because of greater load diversity and based on an analysis of building load data described in Chapter 6 of the TSD, DOE generally estimated the loading on larger transformers as greater than the loading for smaller transformers, although DOE did in this rule set efficiency levels for single-phase and three-phase transformers as equal when the capacity per phase for the two different types of transformers is equal.
The LCC takes into account the projected operating costs for distribution transformers many years into the future. This projection requires an estimate of how, if at all, the electrical load on transformers will change over time (i.e., load growth). In the NOPR analysis, for dry-type transformers, DOE assumed no load growth, while for liquid-immersed transformers, DOE used as the default scenario a one-percent-per-year load growth. It applied the load growth factor to each transformer beginning in 2010, the expected effective date of the standard. To explore the LCC sensitivity to variations in load growth, DOE included in the model the ability to examine scenarios with zero percent, one percent, and two percent load growth. Load growth is discussed in detail in TSD Chapter 8, section 8.3.6.
DOE received substantial comment regarding its load growth assumptions. CDA commented that it is entirely reasonable to deduce that peak power per dwelling increases, and thus transformer loading also increases over time, as people add home theaters, home offices, appliances, and air conditioning to existing dwellings. (CDA, No. 111 at p. 2) EEI commented that load growth on transformers may be from zero to half of a percent per year. (Public Meeting Transcript, No. 108.6 at pp. 147-148) HVOLT commented that after transformers are installed in a residential area with a complement of houses, the load basically stagnates. (Public Meeting Transcript, No. 108.6 at p. 145) Pacific Gas and Electric (PG&E) commented that it assumes three percent growth over the total 30 year life of a transformer corresponding to a growth rate of one tenth of one percent per year. (Public Meeting Transcript, No. 108.6 at pp. 149-150) Southern Company commented that, for the transformer installed in the field, it sees no significant growth once a transformer is installed. (Public Meeting Transcript, No. 108.6 at p. 144)
For the final rule, DOE responded to comments by examining more recent data relevant to customer load growth. Since AEO forecasts indicate that energy use per capita will be approximately constant over time due to trends of increasing end-use efficiency, DOE set the load growth parameter for the main analysis scenario as zero percent per year for both dry-type and liquid-immersed transformers. However, DOE retained the one-percent-per-year load growth scenario as a sensitivity analysis.
DOE needed estimates of electricity prices and costs to place a value on transformer losses for the LCC calculation. DOE created two sets of electricity prices to estimate annual energy expenses for its analysis: an hourly-based estimate of wholesale electricity costs for the liquid-immersed transformer market, and a tariff-based estimate for the dry-type transformer market (see TSD Chapter 8).
DOE received a few comments regarding electricity cost estimation. HVOLT estimated that generation costs of electricity have been in the four to six cents per kilowatt-hour (kWh) range. (Public Meeting Transcript, No. 108.6 at p. 197) ACEEE commented that roughly half the cost of electricity is due to generation, while the other half is transmission and distribution and other expenses. (Public Meeting Transcript, No. 108.6 at p. 204) Southern Company commented that DOE's hourly marginal electricity price model looks conceptually correct, but that there are many variables and it is possible to argue about every one of them (Public Meeting Transcript, No. 108.6 at pp. 205-206).
DOE compared these comments with the estimates of its electricity cost model and determined that these comments and suggestions were consistent with the electricity cost model and estimates in the NOPR analysis. DOE therefore used the same cost model for the final rule with minor adjustments to take into account inflation and more recent data. Electricity cost estimates are discussed in detail in TSD Chapter 8, section 8.3.5.
For the relative change in electricity prices in future years, DOE relied on price forecasts from the Energy Information Administration (EIA)
In response to the NOPR, DOE received a large number of comments regarding electricity price forecasts. ACEEE recommended that DOE look at a range of forecasts, since EIA seems to be at the low end of the range. (Public Meeting Transcript, No. 108.6 at p. 203) In its written comments, ACEEE asked that, at a minimum, DOE use projections from
For the final rule, DOE updated the price forecast to AEO2007 and examined in increased detail the sensitivity of analysis results to changes in electricity price trends and other parameters. Appendix 8D of the TSD provides an expanded sensitivity analysis for all five liquid-immersed transformer design lines and the medium-voltage dry-type with the largest volume of transformer capacity shipments in the market, DL12. This analysis shows that the effect of changes in electricity price trends, compared to changes in other analysis inputs, is relatively small. DOE evaluated a variety of potential sensitivities, and the robustness of analysis results with respect to the full range of sensitivities, in weighing the potential benefits and burdens of the final rule.
Even though distribution transformers use electricity rather than natural gas for their energy supply, several comments expressed concerns that DOE's NOPR analyses might be neglecting indirect energy impacts of standards on natural gas demand and prices. The Alliance to Save Energy (ASE) commented that the natural gas market is extremely tight primarily due to increased use of natural gas to produce electricity, and this has led to incredible volatility in prices. (Public Meeting Transcript, No. 108.6 at p. 59) The American Chemistry Council (ACC) asked DOE to consider the impacts on the natural gas market in selecting the final standard. (ACC, No. 132 at p. 2) Dow Chemical Company commented that, if DOE considers the impact of standards on the U.S. natural gas market and prices, then higher levels can be further substantiated. (Dow Chemical, No. 129 at pp. 1-2) NRDC commented that energy efficiency in transformers can bring down natural gas prices by reducing the demand on gas as a generation fuel. It further commented that this can have a major benefit in reducing natural gas prices to all users, not merely users of transformers. (Public Meeting Transcript, No. 108.6 at p. 57; NRDC, No. 117 at p. 7)
DOE examined the potential size of the impact of distribution transformer standards on natural gas demand in its updated utility impact analysis, and reported the impact of the standard by generation type in Chapter 13 of the TSD. DOE performed the updated analysis based on
In the August 2006 NOPR, DOE proposed that the standards for distribution transformers apply to all units manufactured on or after January 1, 2010. 71 FR 44407. DOE calculated the LCC for customers as if each new distribution transformer purchase occurs in the year manufacturers must comply with the standard.
Some stakeholders suggested that DOE could implement a two-tier standard with two effective dates. In response to the NODA, a group of stakeholders consolidated their comments by creating a joint proposal in this regard. ACEEE, NRDC, EEI, ASE, the American Public Power Association (APPA), the Appliance Standards Awareness Project (ASAP), and the Northeast Energy Efficiency Partnerships (NEEP) recommended in their joint proposal that DOE adopt TSL2 in 2009 and TSL4 in 2013. (Joint Comment) They recommended the delay in implementation of TSL4 so that technical manufacturing problems could be addressed. (Joint Comment, No. 158 at p. 2) On July 30, 2007, DOE received a letter from two Senators urging DOE to adopt the Joint Comment.
DOE rejects the two-tiered approach with TSL4 as the level of the second tier for two reasons: DOE found that TSL4 is not economically justified as described in section VI.1.d of this notice, and therefore rejected TSL4. Second, DOE does not have the authority to amend standards outside a
The discount rate is the rate at which future expenditures are discounted to estimate their present value. It is the factor that determines the relative weight of first costs and operating costs in the LCC calculation. Consumers experience discount rates in their day-to-day lives either as interest rates on loans or as rates of return on investments. Another characterization of the discount rate is the ‘time value of money.’ The value of a dollar today is one plus the discount rate times the value of a dollar a year from now. DOE estimated a statistical distribution of commercial consumer discount rates that varied by transformer type by calculating the cost of capital for the different types of transformer owners (see TSD Chapter 8).
In response to the NOPR, DOE received specific comments regarding its methods for calculating discount rates. EEI commented that some utility companies may have lower credit ratings due to rate decisions that can increase the cost of capital to between 7 and 12 percent real. (Public Meeting Transcript, 108.6 at pp. 123-124) NRDC made a number of specific comments regarding the parameters DOE used in its equation to estimate the cost of capital, suggesting that DOE erred in estimating the reference risk-free discount rate, and in estimating average values of inflation and cost of equity capital. (NRDC, No. 117 at pp. 8-9)
DOE has a two-step approach in calculating discount rates for analyzing consumer economic impacts. The first step is to assume that the actual consumer cost of capital approximates the appropriate consumer discount rate. The second step is to use the use the capital asset pricing model (CAPM) to calculate the equity capital component of the consumer discount rate. Neither stakeholder disagreed with DOE's general approach of estimating consumer discount rates from the cost of capital. NRDC asserted that DOE was using incorrect parameters when it calculated the consumer cost of equity capital with the CAPM. DOE uses information from the Federal Reserve when it determines which parameters are correct for use in the CAPM. The Federal Reserve solicited input in 2005 from a range of stakeholders specifically on how to perform CAPM cost of capital calculations and considered input from a range of stakeholders in determining the best parameter values to use in the CAPM. 70 FR 29512-29526 (May 23, 2005). Specifically, DOE rejects NRDC's assertion that the long-term average of the rate of return on short-term Treasury notes is the only correct way to calculate the risk free interest rate because this is not consistent with the information from the Federal Reserve which accepts long term averages of both short-term and long-term Treasury note rates for use in the CAPM. DOE added a discount rate sensitivity feature to its consumer economic impact analysis tools to examine the sensitivity of the analysis results to the details of DOE's capital cost estimates. More detail regarding DOE's estimates of commercial consumer discount rates is provided in section 8.3.8 of the TSD.
In response to the NOPR, DOE received many comments regarding whether or not more efficient distribution transformers would have longer lifetimes and whether this would be both a reliability and an economic benefit that could accrue from standards.
ACC, ASAP, CEC, Dow Chemical Company, the North American Electric Reliability Corporation (NERC), 23 members of the U.S. House of Representatives, and two members of the U.S. Senate urged DOE to take into consideration transformer operating temperatures and the impact that this may have on transformer lifetime and reliability. (ACC, No. 132 at p. 2; Public Meeting Transcript, No. 108.6 at p. 175; Public Meeting Transcript, No. 108.6 at p. 60; Dow, No. 129 at p. 2; NERC, No. 133 at p. 1; U.S. Congress, No. 125 at p. 1; U.S. Senate, No. 120 at p. 1) Several stakeholders, including EMS Consulting and Metglas, asserted that lower operating temperatures may double or quadruple the life of transformers. (Public Meeting Transcript, No. 108.6 at pp. 172 and 186; Metglas, No. 144 at p. 6) Others, including Central Moloney, Inc., PG&E, HVOLT, and Southern Company, commented that they expected lower operating temperatures to have potentially little or no impact on transformer lifetimes in practice because designs and loading practices would adjust to maintain current operating temperatures and lifetimes. (Public Meeting Transcript, No. 108.6 at pp. 187, 174, 168, and 171) ACEEE, ASAP, and an individual stakeholder all commented that DOE can and should calculate the impacts of a higher efficiency standard on transformer lifetimes and should include these impacts in its consumer benefit calculations. (Public Meeting Transcript, No. 108.6 at pp. 40-41; ASAP, No. 104 at p. 1; Zahn, No. 119 at p. 7)
DOE evaluated the possibility of estimating the effects of efficiency on transformer lifetime and reliability, and the likely accuracy of such estimates. DOE first calculated the average temperature rise and operating temperature of the transformer designs at each of the TSLs considered in today's final rule. These average temperature rises are presented in TSD Appendix 8G.
From its review of transformer engineering references, DOE agrees that if the only difference between more and less efficient transformers is that more efficient transformers have lower operating temperatures, then the lifetime of more efficient transformers may increase because the electrical insulation within the transformer may last longer. But given the full range of factors that can affect transformer life and reliability, DOE cannot determine at this time that decreasing temperature due to efficiency improvements will cause high efficiency transformers to have increased transformer lifetimes on average compared to lower efficiency transformers. There are many differences between more and less efficient transformers in addition to temperature rise, and there are many failure modes for a transformer in addition to insulation degradation. More efficient transformers tend to be larger and heavier, and for pole-mounted transformers this may increase the likelihood of weather-related and support-structure failures. Thus, higher efficiency transformers may at times have lower lifetimes than lower efficiency transformers. Many transformers fail due to corrosion, lightning, and animal-related short circuits. In addition, many transformers are replaced during distribution system upgrades or after a certain age, not due
DOE already includes in its analysis the economic benefits of reliability from more efficient transformers due to decreased peak loading. It includes a reliability margin cost in generation, transmission and distribution capacity costs that are included in the marginal capacity cost estimates for both the LCC analysis and the national impact analysis (NIA). As such, DOE fully includes the decreased reliability capacity costs resulting from standards in its benefits calculations. Electricity cost estimates, which include capacity and reliability costs, are discussed in detail in TSD Chapter 8, section 8.3.5.
The NIA evaluates the impact of a proposed standard from a national perspective rather than from the consumer perspective represented by the LCC. When DOE evaluates a proposed standard from a national perspective, it must consider several other factors that are different from, or not included in, the LCC analysis. One of the factors DOE modeled in the NIA was the replacement of existing, less efficient transformers with more efficient transformers over time. DOE estimated this rate of replacement using an equipment shipments model that describes the sale of transformers for replacement and for inclusion in new electrical distribution system infrastructure. A second factor included in the NIA was a discount rate. Since the national cost of capital may differ from the consumer cost of capital, the discount rate used in the NIA can be different from that used in the LCC. The third factor DOE included in the NIA was the difference between the energy savings obtained by the consumer and the energy savings obtained by the Nation. Because of the effect of distribution and generation losses, the national energy savings from a proposed standard are larger than the sum of the individual consumers' energy savings. The details of DOE's NIA are provided in Chapters 9 and 10 of the TSD.
DOE received comment on two issues related to discount rates in response to the NOPR concerning the NIA analysis. The first was the selection of the discount rate that is best for evaluating the NPV benefits to the country, and the second was the process of applying a discount rate to energy savings and emissions. In addition, there were comments regarding the need for DOE to account for other national benefits, such as potential decreases in natural gas prices and increased electrical system reliability. These natural gas price and electrical system reliability impacts are discussed above in the description of the LCC methodology and comments in section IV.C.2.e and at the end of section IV.C.3.c, respectively.
In response to the NOPR, DOE received a range of comments with respect to the discount rate to use in evaluating national benefits. ACEEE and Metglas recommended that DOE use a discount rate of 4.2 percent and 4.25 percent, respectively. (ACEEE, No. 127 at p. 1; Metglas, No. 144 at p. 4) ASAP and NRDC recommended that DOE use the three percent discount rate in evaluating national impacts. (Public Meeting Transcript, No. 108.6 at p. 120; NRDC, No. 117 at p. 9) NRDC further commented that the long-term average rate of return on government bonds is 1.2 percent real. (Public Meeting Transcript, No. 108.6 at pp. 124-125) EEI commented that commercial customers seek a 20- or 25-percent nominal discount rate for returns. (Public Meeting Transcript, No 108.6 at p. 122) Finally, Southern Company noted that seven percent nominal is close to their cost of capital, and commented that excessive transformer investments are likely to displace more productive distribution system investments in other parts of the company. (Public Meeting Transcript, No. 108.6 at pp. 120-121)
DOE follows OMB guidance in the selection of the discount rate for evaluating national benefits. OMB Circular A-4 provides clear guidance to DOE directing it to use discount rates of seven percent and three percent in evaluating the impacts of regulations. To address comments, DOE also reported results for the 4.2 percent discount rate in Appendix 10A of the TSD for this rulemaking. In selecting the discount rate corresponding to a public investment, OMB directs agencies to use “the real Treasury borrowing rate on marketable securities of comparable maturity to the period of analysis.” Office of Management and Budget (OMB) Circular No. A-94, “Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs,” dated October 29, 1992, section 8.c.1.
In the NOPR, DOE reported both undiscounted and discounted energy savings and emissions impacts and invited comment on the appropriateness of the discount rates used. 71 FR 44407. CEC commented that DOE should not use or report discounted emissions. (Public Meeting Transcript, No. 108.6 at p. 109) EEI commented that discounted emissions and energy savings are an interesting point of information, but DOE should determine the standard based on the absolute numbers. (Public Meeting Transcript, No. 108.6 at p. 111) NRDC objected to discounting emissions and would advocate for a zero percent discount rate for emissions. (Public Meeting Transcript, No. 108.6 at pp. 113-114) Southern Company commented that discounting future sulfur dioxide (SO
Consistent with Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51737, DOE follows the guidance of OMB regarding methodologies and procedures for regulatory impact analysis that affect more than one agency. In reporting energy and environmental benefits from energy conservation standards, DOE will report both discounted and undiscounted (i.e., zero discount-rate) values.
In analyzing the potential impacts of new or amended standards, DOE evaluates impacts on identifiable groups (i.e., subgroups) of customers, such as different types of businesses, which may be disproportionately affected by a national standard. For this rulemaking, DOE identified rural electric cooperatives and municipal utilities as transformer consumer subgroups that could be disproportionately affected, and examined the impact of proposed standards on these groups. The consumer subgroup analysis is discussed in detail in TSD Chapter 11.
For the MIA, DOE introduced one change to the methodology it described in the NOPR. In the proposed rule, DOE captured the costs of conversion, by manufacturers of liquid-immersed transformers, to production of amorphous core transformers at TSL6 (all DLs) and TSL5 (DL3 through DL5). For the final rule analysis and its associated material pricing assumptions, DOE's LCC customer choice model indicates that manufacturers would also produce significant volumes of amorphous core transformers at TSL3, TSL4, and TSLA. For TSL3 and TSL4, the model indicates that 95 percent of all transformers in DL4 would be constructed from amorphous core technology. Similarly, for TSLA, 49 percent of DL4 transformers and 84 percent of DL5 transformers would be amorphous core transformers. For the final rule, DOE modeled this partial conversion to amorphous core construction for TSL3, TSL4, and TSLA (with no change to the proposed rule methodology for TSL5 and TSL6).
Indirect employment impacts from distribution transformer standards consist of the net jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated. These indirect employment impacts are a consequence of: (1) Reduced spending by end users on energy (electricity, gas—including liquefied petroleum gas—and oil); (2) reduced spending on new energy supply by the utility industry; (3) increased spending on the purchase price of new distribution transformers; and (4) the effects of those three factors throughout the economy. DOE expects the net monetary savings from standards to be redirected to other forms of economic activity. DOE also expects these shifts in spending and economic activity to affect the demand for labor.
DOE did not receive stakeholder comments on its net national employment estimation methodology. DOE therefore retained the same methodology that it used in the NOPR. For more details on the employment impact analysis, see TSD Chapter 14.
The utility impact analysis estimates the impacts that the energy savings from a standard has on the nation's energy production and distribution infrastructure. These impacts include the change in fuel consumed by fuel type, and the change in generation capacity by generator type.
DOE analyzed the effects of standards on electric utility industry generation capacity and fuel consumption using a variant of EIA's NEMS. NEMS, which is available in the public domain, is a large, multi-sectoral, partial-equilibrium model of the U.S. energy sector that estimates the economic supply and demand balance between the energy sector and other sectors of the U.S. and international economies from year to year. The EIA uses NEMS to produce the AEO, a widely recognized baseline energy forecast for the U.S. DOE uses a variant known as NEMS-BT for the appliance and equipment standards rulemakings. (See TSD Chapter 13). Since DOE did not receive comments on the utility impact analysis methods in response to the NOPR, DOE made no adjustments to the methodology for the final rule analysis.
For the proposed rule, DOE used AEO2005 as input to the utility analysis, which DOE updated to AEO2006 for this analysis. As in the proposed rule, the utility impact analysis was conducted as policy deviations from the
DOE determined the environmental impacts of the proposed standards. Specifically, DOE calculated the reduction in power plant emissions of carbon dioxide (CO
NEMS-BT is run similarly to the
NEMS-BT tracks CO
In response to the NOPR, DOE received comments regarding the potential economic benefits of emissions reductions. ACEEE commented that the EIA forecast does
DOE did not include estimates of the economic benefits of CO
Since DOE opened the docket for this rulemaking, it has received more than 170 comments from a diverse set of parties, including manufacturers and their representatives, States, energy conservation advocates, and electric utilities. Comments DOE received in response to the NOPR, on the soundness and validity of the methodologies DOE used, are discussed in section IV. Other stakeholder comments in response to the NOPR addressed the burdens and benefits associated with new energy conservation standards, the information DOE used in its analyses, results of and inferences drawn from the analyses, impacts of standards, the merits of the different TSLs and standards options DOE considered, other issues affecting adoption of standards for distribution transformers, and the DOE rulemaking process. DOE addresses these other stakeholder comments in response to the NOPR below.
DOE received comments on the engineering analysis in four areas: primary voltage sensitivities, material prices, amorphous material prices, and material availability.
As an analysis for the final rule, DOE considered alternative primary voltages in its representative units designed in the engineering analysis. ERMCO commented that the voltages DOE used for its NOPR analysis were reasonable and common voltages for the representative units from DL1-DL5. However, ERMCO was concerned that there are certain voltages used in distribution networks in the U.S. today that are unusual, and may not be achievable at TSL4. ERMCO also stated that there may be impedance or size requirements, specified by utilities, that lower efficiency. (ERMCO, No. 113 at p. 2) ERMCO provided a second written comment, focusing on the voltage issue and identifying dozens of voltages that it believes may be more problematic than others for achieving TSL4. (ERMCO, No. 147 at pp. 3-4) ERMCO also noted that, while primary voltages and basic impulse insulation level (BIL)
In response to this comment, DOE conducted an engineering sensitivity analysis to understand more about the potential impact of different voltages on the efficiency of the resulting designs. DOE conducted sensitivity analysis runs on DL2 (i.e., 25 kVA pole-mount), DL4 (150 kVA three-phase), and DL5 (1500 kVA three-phase). Using all the same inputs (including material prices), but changing the primary and/or secondary voltages, DOE found that some of the transformers with the different primary and/or secondary voltages had a higher first cost and were less efficient. The impact on DL4 was the most significant, with efficiency shifts as great as 0.18 percent with certain BIL ratings. This means that, all else being equal, a DL4 transformer designed with the reference voltage may be 99.34 percent efficient, while one with the higher BIL-rated primary voltage would be 99.16 percent efficient. This impact on the transformer designs was one of the “other factors” taken into consideration by the Secretary when reviewing each of the TSLs and selecting today's standard (see section VI.D.1 of this final rule). The results of the voltage sensitivity analysis can be found in Appendix 5D of the TSD.
DOE received comments expressing concern over material prices that DOE used in developing the proposed standards, including prices for core steel and conductors. ACEEE commented that material prices are unusually high right now, citing press articles and futures markets which are anticipating that materials prices may come down. ACEEE believes electrical steel prices will come down because of announced capacity additions in the industry. (ACEEE, No. 127 at p. 6) NPCC commented that fluctuating material prices are not a reason for concern in setting the standard because transformer material prices are correlated with the materials used to construct power plants. NPCC stated that if the standard is set low because of high material prices, the cost of adding electricity generation capacity (i.e., powerplants) will also be higher under any high material price scenario. (NPCC, No. 141 at p. 4)
Cooper Power Systems commented that it believes DOE should obtain current material price data to determine which should be used as the benchmark. Cooper found that the 2005 material price sensitivity analysis conducted in the NOPR was more representative than DOE's five-year average material price analysis. (Cooper, No. 154 at p. 3) Howard Industries commented that its material prices have increased 30-40 percent in the last two to three years, and it believes DOE should recalculate its engineering curves based on 2005/2006 material prices. (Howard, No. 143 at p. 7) NEMA expressed concern that DOE's baseline analysis used outdated material costs, and requested that DOE obtain 2005 and 2006 material pricing to use as the new benchmark. NEMA stated that the demand for electrical products in China is very high, and this demand is driving up the prices of commodity materials that are used in the production of transformers. (Public Meeting Transcript, No. 108.6 at p. 142; NEMA, No. 125 at pp. 1-2) The National Rural Electric Cooperative Association (NRECA) also expressed concern about core steel availability and prices. (NRECA, No. 123 at p. 3)
In response to these comments, DOE developed a revised set of reference material prices. The revised five-year average material price for the final rule spans the years 2002 through 2006, and is based on discussion with manufacturers and material suppliers. This approach is consistent with a comment from EEI, which noted that commodity materials can fluctuate over
DOE used the new five-year average material prices to develop new engineering analysis cost-efficiency curves, which it then incorporated into the LCC spreadsheets for the final rule analysis. The new five-year average material prices and revised engineering analysis cost-efficiency curves can be found in Chapter 5 of the TSD.
DOE received several comments on amorphous core material, questioning primarily the pricing that DOE used in the engineering analysis prepared as a basis for the NOPR. ACEEE commented that DOE should check Metglas' assertion that DOE had overestimated the cost of amorphous core transformers. (ACEEE, No. 127 at p. 6) National Grid commented that DOE should re-evaluate the information presented by the amorphous material manufacturer. (NGrid, No. 138 at p. 2) Metglas stated a concern that the DOE analysis portrayed amorphous metal transformers as too expensive. Metglas commented that the software input cost for a finished core should have been $1.75/lb and not $2.85/lb, based on the fact that the raw material price for amorphous material was $0.80 to $0.90/lb for 2000 to 2004, and $0.95/lb for the first quarter of 2005. (Public Meeting Transcript, No. 108.6 at p. 36; Metglas, No. 144 at p. 2)
In response to this comment, DOE reviewed its material pricing for amorphous core material, as part of its review (discussed in the previous subsection) of all the material prices used in its engineering analysis. DOE's review found that the five-year average finished amorphous core material price was $2.14 per pound. Details on the review of raw material and mark-up costs associated with sourcing a finished amorphous core can be found in Chapter 5 of the TSD.
DOE received several comments expressing concern over the availability of materials—including core steel and conductors—for building energy efficient distribution transformers. These issues pertain to a global scarcity of materials as well as issues of materials access for small manufacturers.
NEMA expressed concern over the effective date of the standard because of a lack of core steel availability. (Public Meeting Transcript, No. 108.6 at p. 220) NRECA also expressed concern about core steel availability. (Public Meeting Transcript, No. 108.6 at p. 51; NRECA, No. 123 at p. 3) Central Moloney commented that it supports TSL2 because it is concerned about the availability of materials needed for higher efficiency transformers. (Public Meeting Transcript, No. 108.6 at p. 60) Howard Industries expressed a similar concern, stating that it believes suppliers of raw materials (e.g., aluminum magnet wire) cannot meet the demand that will be required at TSL2, and the situation would be much worse at TSL4. Howard recommends TSL1. (Howard, No. 143 at p. 6) HVOLT also supports TSL1, because there is a wide array of materials that could be used to meet this level of the minimum efficiency standard. (Public Meeting Transcript, No. 108.6 at p. 229)
Other stakeholders, however, emphasized the changes in the core steel market that would increase availability and may mitigate the impact of potential shortages of core steel. AK Steel stated that it is expanding its steel production capacity to meet the demand needs of more efficient transformers. It indicated that it will increase steel production by 50,000 tons per year starting in early 2007, and that other producers around the world are adding capacity as well. (Public Meeting Transcript, No. 108.6 at pp. 34 and 228) Metglas commented that core steel will become increasingly available, and cited DOE's core steel report (Appendix 3A), showing that AK Steel, POSCO, and Wuhan are each adding significant capacity by 2007. Therefore, Metglas stated that core steel availability concerns should not deter DOE from selecting TSL4. (Metglas, No. 144 at p. 4)
DOE wanted to ensure that it did not adopt a standard level that could only be achieved by one type of core steel, which might be proprietary. To better understand and address the issue of core steels used by selected standards-compliant designs in the LCC, DOE evaluated the types (e.g., M6, M3, SA1) of core steel selected by the LCC consumer choice model at all the liquid-immersed TSLs. Knowing what proportion of the selected designs are built with each of the steel type for each TSL enabled DOE to consider this information in the standard level selection. Details of core steel type proportions for each TSL and each design line are provided in Appendix 8H of the TSD.
DOE received a few comments regarding trends in transformer efficiency and the impact that this may have on energy savings. ACEEE commented that average transformer efficiencies appear to be coming down. (ACEEE, No. 127 at p. 7) NEMA commented that 10 years ago there was a trend where customers bought cheaper and less efficient transformers every year, but that the market has turned around and now an increasing percentage of customers are purchasing TP 1 transformers. NEMA also noted that the shipments data it has submitted over the years to DOE have shown this changing trend (Public Meeting Transcript, No. 108.6 at p. 220; NEMA, No. 125 at p. 3) NRECA commented that standards may encourage some utilities to stop evaluating transformer purchases for efficiency because the small differences between the energy savings and costs of evaluated and standard-compliant transformers may no longer justify the cost of performing evaluations. (NRECA, No. 123 at p. 3)
DOE did not include any baseline efficiency trends in its shipments and national energy savings models. As noted in comments received by DOE, it is clear that transformer efficiencies have dropped over the last decade. However, current data appears to indicate the trend towards lower efficiencies has ended, but the data are inconclusive as to whether efficiencies are remaining level or increasing slightly. Furthermore, AEO forecasts show no long term trend in transmission and distribution losses. Therefore, given the variation in comments, and the data from AEO forecasts, DOE estimates that the probability of an increasing efficiency trend and the probability of a decreasing efficiency trend are approximately equal, and therefore used a zero trend in baseline efficiency as the median scenario. DOE performed sensitivity analyses for both the low and high baseline efficiency in the LCC analysis with results presented in Appendix 8D of the TSD.
Metglas made two specific comments related to the MIA. First, Metglas said that it was “out of context” for DOE to incorporate conversion capital expenditures into the MIA. Since the engineering analysis and LCC analysis assumed that U.S. transformer
Regarding Metglas's first point, DOE recognizes that the engineering and LCC analyses are based on a scenario where U.S. transformer manufacturers purchase finished amorphous cores (for TSLs 6, 5, A, 4, and 3), while the MIA is based on a scenario where manufacturers would largely convert their facilities to produce the amorphous cores for the amorphous core transformers. For the engineering and LCC analyses, DOE used actual market pricing in its analysis to develop its production costs and transformer price estimates. The engineering and LCC analyses are based on the assumption that manufacturers who make a decision to build an amorphous core transformer will purchase prefabricated (i.e., cut and formed) amorphous cores.
During the manufacturer interviews prior to the August 2006 NOPR, DOE learned that it was likely that many of the U.S. manufacturers would convert their facilities to produce amorphous cores if the standard required or otherwise triggered significant volumes of amorphous core transformer purchases—manufacturers indicated that production of cores is an important part of the value chain and they would likely choose to continue to produce them. Therefore, DOE decided to conduct the MIA as if manufacturers would convert their facilities to produce amorphous core transformers for TSLs where the DOE customer choice model indicated selection of amorphous core transformers in high volume. In its assessment of manufacturer impacts, DOE is not evaluating the assumption made for the engineering and LCC scenarios, namely that manufacturers would purchase finished, prefabricated amorphous cores. If it were modeled in the MIA, then the employment engaged in fabricating cores would be shifted from domestic factories to overseas businesses which would operate all the equipment needed to manufacture amorphous cores. DOE believes that both transformer production costs and transformer pricing would be similar under the two scenarios. The difference between the two scenarios would affect only the allocation of the production costs. In the MIA, instead of manufacturers buying prefabricated cores (i.e., U.S.-sourced amorphous ribbon processed in India), paying for trans-oceanic shipping, and lowering their labor costs, manufacturers would allocate costs differently by purchasing amorphous material and employing domestic labor to manufacture the amorphous cores. The decision a manufacturer makes between outsourcing amorphous core production and converting its facilities to produce amorphous core transformers depends on multiple competing factors, including the trade-off between labor and trans-oceanic shipping costs. Because of these competing factors, it is not obvious whether manufacturers would purchase amorphous cores from abroad or produce them on-site (and manufacturers indicated during interviews that they are not sure which path they would follow today)—this is tantamount to saying that the cost difference between the two scenarios is likely not major. For these reasons, DOE concludes it is appropriate to use the pricing information (based on purchased cores) together with appropriate conversion capital cost estimates in the MIA.
With respect to Metglas's second point about the magnitude of the estimated conversion capital expenditures, DOE conducted a detailed review of its amorphous-related conversion capital expenditure estimates in the August 2006 NOPR. DOE found that the conversion costs estimates in the NOPR could be reduced by using different core manufacturing equipment than DOE had assumed in the NOPR. DOE's review concluded that the final rule conversion capital expenditures at TSL5 and TSL6 are about half of those presented in the August 2006 NOPR. DOE's conclusion is consistent with Metglas's assertion that the investment costs in the August 2006 NOPR were two to three times too high. See TSD Chapter 12, Section 12.4.1, for detailed information on the capital expenditures associated with amorphous core conversion.
In response to the NOPR and NODA, DOE received comments regarding the economic impacts of the proposed standards. The vast majority of these comments discussed such impacts in terms of the life-cycle costs. This preamble discusses these comments in section V.B.2, below.
DOE received a comment from Metglas that relates to the burden that would be placed on manufacturers if minimum efficiency standards were implemented that required amorphous core transformers. Metglas commented that while it cannot replace the entire conventional cores steel market, it is currently making investments that will allow it to double its production by mid-2007, and it has a commitment to expand as the market develops. (Metglas, No. 144 at p. 3; Public Meeting Transcript, No. 108.6 at p. 233) DOE appreciates this comment, but while Metglas may have a commitment to expand production capacity with an expanding market, this provides no guarantee that severe material shortages will not occur if demand increases faster than Metglas' ability to expand production. As part of DOE's weighing the benefits and burdens of setting standards for distribution transformers, DOE considered whether the standard would require amorphous core steel.
As discussed above, DOE is reluctant to set standard levels that would require products to be constructed of a single, proprietary design or material. In particular, in the case of amorphous material, DOE is concerned because it understands that currently there is only one significant supplier of amorphous ribbon to the U.S. market.
DOE received comments from multiple parties about transformer commoditization
Duke Energy stated that the risk of increments of manufacturing capacity being moved offshore is outweighed by the benefits of energy savings. (Duke Energy Corporation, No. 134 at p. 3) ACEEE submitted comments that are consistent with Duke Energy's. While ACEEE agreed with manufacturers that efficiency standards do lead to more standardization of product designs (i.e., commoditization), it believes U.S. manufacturers can still market high efficiency products (e.g., if the final standard were set high enough to exclude most silicon core steel designs, manufacturers could market amorphous core transformers as high-efficiency products). Furthermore, ACEEE contended that the cost savings of establishing offshore production are not significant for transformers since transformers are heavy and, consequently, costly to ship. (ACEEE, No. 127 at p. 8; Public Meeting Transcript, No. 108.6 at p. 95) AK Steel expressed disagreement with ACEEE's view, stating that many power transformers are shipped to the U.S. from abroad, so it is therefore clear that transformer weight and shipping costs do not deter offshore transformer manufacturing. (Public Meeting Transcript, No. 108.6 at p. 96) ASAP pointed out that the incentive for manufacturers to move offshore due to low labor costs in Asia will be present with or without standards. (Public Meeting Transcript, No. 108.6 at p. 102) Finally, the Midwest Energy Efficiency Alliance (MEEA) suggested that DOE cannot rely on the risk of outsourcing production to lower labor cost countries in choosing TSL2 (instead of higher standards) because it has not quantified the risk of this occurrence. In contrast, MEEA pointed out, DOE quantified the indirect employment benefits to the economy of higher TSLs. (MEEA, No. 126 at p. 4)
DOE appreciates the varied comments it received on the issue of transformer commoditization, the outsourcing of production, and foreign competition. While DOE understands that some manufacturers are concerned that today's rule could lead to some commoditization of liquid-immersed transformers, DOE's engineering analysis indicates that many designs exist that are more efficient than today's minimum efficiency standard. The designs available to manufacturers can be constructed of either amorphous material or silicon core steels. Moreover, today's minimum efficiency standard can be met with two or more grades of silicon core steel, depending on the design line. In addition, DOE notes that there are many other custom design factors which are built into a distribution transformer in addition to the efficiency of the unit. Utilities can (and do presently) specify transformer designs with efficiencies that are both at and above (i.e., more efficient than) the minimum efficiency standard being adopted in today's final rule. Because today's standard preserves multiple design paths and a diversity of products, DOE does not expect that today's standard will be a significant cause of increased levels of outsourced production to lower labor cost countries or affect U.S. manufacturer's ability to compete. DOE believes this is the situation for both liquid-immersed and medium-voltage dry-type transformer manufacturing. While concerns about outsourcing and foreign competition may be more relevant and valid for standard levels higher than those promulgated today, DOE rejected those standard levels based on impacts associated with other EPCA criteria, and did not reject those higher standard levels based upon explicit consideration of outsourcing and foreign competition.
DOE received extensive comments regarding the life-cycle economic burdens and benefits from standards, in response to both the NOPR and the NODA. A large number of stakeholders recommended that DOE select a standard that minimizes life-cycle costs and encouraged DOE to select TSL4 on the ground that it achieved that goal. (ACEEE, No. 127 at p. 1-3, 9; CEC, No. 98 at p. 1-2; NASEO, No. 131 at p. 1-2; NPCC, No. 141 at p. 1-4; Public Meeting Transcript, No. 108.6 at p. 193; U.S. Congress, No. 125 at p. 1-2; Metglas, Incorporated, No. 144 at p. 3, 6; NPCC, No. 141 at p. 1-4; Office of Consumer Affairs and Business Regulation, Division of Energy Resources, Commonwealth of Massachusetts, No. 152 at p. 1-2; PNM Resources and 9 other utilities, No. 140 at p. 1-2; NYSERDA, No. 136 at p. 1; Public Meeting Transcript, No. 108.6 at p. 39; National Grid, No. 138 at p. 1-2; Public Meeting Transcript, No. 108.6 at p. 59)
Others commented that a standard that minimizes life-cycle costs creates burdens on particular subgroups, or that the minimum life-cycle cost level, TSL4, creates inconsistencies between three-phase and single-phase transformers and that these burdens justify giving less weight to life-cycle cost results than what was advocated by other stakeholders. NRECA commented that it does not support TSL4, because it believes this level would unfairly burden rural consumers who are likely at an economic disadvantage compared to urban consumers. (NRECA, No. 176 at p. 3) NRECA further commented that utilities can be encouraged to minimize life-cycle costs by being total ownership cost (TOC) evaluators. (NRECA, No. 123 at p. 1-2) ERMCO commented that single-phase liquid-units are commonly “banked” to supply three-phase power, therefore single-phase and three-phase units should have the same efficiency requirements. (ERMCO, No. 165 at p. 1) NPCC commented that TSL4 provides the maximum benefits compared to burdens except for design line 4 transformers where they recommended adoption of TSL2. (NPCC, No. 141 at p. 1-4)
While DOE gave substantial weight to the LCC results in selecting the standard levels in today's rule, these results were not the sole determining factor. DOE weighed all of the economic impacts in reaching its decision. DOE agrees with stakeholders who commented that differences in efficiencies between single-phase and three-phase efficiency levels would create burdens on both manufacturers and consumers. The levels selected by DOE are close to the minimum life-cycle cost levels that maintain consistency between single-phase and three-phase efficiency requirements. (see TSD Appendix 8I)
In response to the NOPR, DOE received comments on the need to maximize energy savings. Many stakeholders commented that the TSL2 level proposed by DOE in the NOPR did not maximize energy savings. (ACEEE, No. 127 at p. 1-3, 9; Public Meeting Transcript, No. 108.6 at p. 26; CEC, No. 98 at p. 1-2; CDA, No. 111 at p. 5; Dow Chemical Company, No. 129 at p. 1-2; Exelon Corporation, No. 105 at p. 1; NARUC, No. 106 at p. 1-5; NASEO, No. 131 at p. 1-2; NRDC, No. 117 at p. 1-6; NPCC, No. 141 at p. 1-4; U.S. Congress, No. 125 at p. 1-2; U.S. Senate, No. 120 at p. 1)
DOE also received comment that some levels could create unintended consequences that could reduce energy savings. CEA expressed concerned that
DOE recognizes that inconsistencies between the stringency of efficiency levels between small and large transformers can lead to market shifts that may decrease energy savings. DOE did not quantitatively estimate such potential market shifts because of a lack of data on such market shift elasticities. But DOE did solicit stakeholder comment in the NODA regarding the possibility of recombining the efficiency levels proposed in the NOPR. 72 FR 6189-6190. In section V.C below, DOE addressed the burden of potential market shifts described in stakeholder comments by recombining the proposed efficiency levels to create more consistency between small, large, single-phase, and three-phase liquid-immersed transformers. By recombining efficiency levels into combinations that have fewer economic burdens, DOE increases the energy savings that are economically justified.
DOE received comments that energy conservation standards may lessen the utility and performance of transformers by resulting in transformers that are heavier and larger, thus creating size and space constraint issues. DOE quantified these effects in its analysis and estimated the impacts in terms of increased installations costs. This rulemaking describes the comments and DOE's response to these issues in section IV.C.1.b above.
DOE received comment from the Department of Justice, which indicated that the proposed levels in the NOPR may adversely affect competition with respect to distribution transformers used in industries, such as underground coal mining, where physical conditions limit the size of the equipment that can be effectively utilized. (DOJ, No. 157 at p. 2) DOE considered this input from DOJ, along with comments from several stakeholders, and as discussed above in section IV.A.2 of today's notice, decided to treat space-constrained underground mining transformers as a separate product class in this final rule.
DOE received extensive comment from stakeholders on the need of the Nation to conserve energy. NRDC commented that the need for the Nation to conserve energy was urgent from both an environmental and public benefit perspective. (NRDC, No. 117 at p. 1-6) NERC commented that the energy savings may be important for helping maintain electric system reliability. (NERC, No. 133 at p. 1) PNM Resources and nine other utilities commented that energy savings from a standard can improve the security and reduce reliability costs for the Nation's energy system, can provide national economic benefits, reduce generation capacity requirements, and reduce generation-related emissions. (PNM Resources and nine other utilities, No. 140 at p. 1) And many stakeholders commented on the need of the Nation to conserve energy when they commented that the TSL2 level proposed in the NOPR did not maximize energy savings. (ACEEE, No. 127 at p. 1-3, 9; Public Meeting Transcript, No. 108.6 at p. 26; CEC, No. 98 at p. 1-2; CDA, No. 111 at p. 5; Dow Chemical Company, No. 129 at p. 1-2; Exelon Corporation, No. 105 at p. 1; NARUC, No. 106 at p. 1-5; NASEO, No. 131 at p. 1-2; NRDC, No. 117 at p. 1-6; NPCC, No. 141 at p. 1-4; U.S. Congress, No. 125 at p. 1-2; U.S. Senate, No. 120 at p. 1)
DOE recognizes the need of the Nation to save energy. Enhanced energy efficiency improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts or reduces the costs of energy production. In recognition of this national need, DOE recombined the levels proposed in the NOPR to create a new combination of levels that could increase energy savings while maintaining economic justification. The recombined levels considered by DOE are described in more detail in section V.C below.
DOE received comments from stakeholders on certain other topics that were considered by the Secretary in arriving at the standard published today. These factors included: (a) Availability of higher BIL rated primary voltages; (b) a materials price sensitivity analysis using current material prices (in addition to the reference scenario of the five-year average material prices); (c) a materials availability analysis to ensure a diverse mix of core steels in the LCC-selected designs; and (d) consistency between single-phase efficiency levels and their three-phase equivalents. Each of these comments is discussed in this rulemaking, in sections that more closely relate to the specific analysis involved.
Another consideration for DOE under the “Other Factors” EPCA criterion was whether the standard level selected would impact the availability of transformer designs that have voltages with BIL ratings greater than the designs used in the engineering analysis (see footnote on BIL ratings in section V.A.1.a above). DOE conducted supplementary engineering analyses for selected design option combinations in four liquid-immersed design lines. Relative to the basecase (reference) transformers designed by the software, DOE found that changing the primary voltages to have a higher BIL ratings would reduce the efficiency and increase the cost of the cost-optimized transformer designs. For certain design lines, this impact was particularly significant. The results can be found in TSD Appendix 5D.
DOE is concerned about how material prices might change and impact the market relative to the five-year average material price scenario used for the reference analysis for the final rule. DOE therefore conducted a separate engineering analysis and LCC using the 2006
DOE considered the availability of a variety of core steels that could be used to meet the standard in order to address stakeholder concerns about sources and availability of specific types of core steel. This issue is particularly significant at the higher standard levels where amorphous steel would be required. DOE wishes to ensure a diversity of core steels in the LCC-selected designs, avoiding overly constraining certain grades of steel. DOE found in its review of the core steels selected by the LCC model that certain standard levels had transformer designs based on a disproportionately large percentages of a particular steel grade due to the minimum efficiency standard. The analysis of the core steels selected by the LCC consumer choice model can be found in TSD Appendix 8H.
DOE is concerned about the consistency between the efficiency values required for single-phase transformers and their three-phase equivalents (per phase). DOE understands from comments submitted that having different standards for single-phase and three-phase liquid-immersed distribution transformers will cause disturbances or distortions in the market if the efficiency requirements promulgated by DOE are inconsistent between single-phase transformers and their three-phase equivalents (see section V.C below).
DOE received comments on three interrelated topics that led DOE to create additional TSLs for liquid-immersed transformers for consideration in deciding what standards to adopt: (1) Consistency of minimum efficiency values for single and three-phase transformers; (2) continuity across capacities (or kVA ratings) at the interfaces between design lines; and (3) reasons for not setting standards for design line 4 at TSL3 or higher. These topics are interrelated because, taken together, they produce a rationale for DOE's construction of additional TSLs: TSLs A, B, C and D.
First, several manufacturers of liquid-immersed distribution transformers recommended that DOE establish minimum efficiency standards that equally treat a single-phase transformer with its corresponding three-phase analog. (Cooper Power Systems, No. 154 at p. 2; Howard Industries, No. 143 at p. 2; Public Meeting Transcript, No. 108.6 at p. 65) For example, a 100 kVA single-phase transformer should be held to the same standard as a 300 kVA three-phase transformer. (Public Meeting Transcript, No. 108.6 at p. 46) (In this example, the 300 kVA three-phase transformer is the analog to the 100 kVA single-phase transformer, that is, the per-phase capacities of the two transformers are identical.) While expressing concern about the inconsistent treatment of single-phase and three-phase transformers in the proposed rule, ERMCO suggested that there may be some rationale for more stringent regulation of the three-phase transformers. (ERMCO, No. 96 at p. 2)
NRDC also commented in support of the construction of a new TSL that achieves consistency between single-phase and three-phase transformers. (Public Meeting Transcript, No. 108.6 at pp. 162-163) ACEEE supported averaging the efficiency values for the single-phase and three-phase transformers to achieve the consistency requested by manufacturers. ACEEE expressed opposition to a simple reduction in the three-phase efficiency levels to match the single-phase levels. (ACEEE, No. 127 at p. 8) DOE analyzed the consistency of its existing TSLs and presents those findings in TSD Appendix 8I.
Second, stakeholders commented on the separate but related issue concerning alleged inconsistent treatment of design lines in the proposed rule. This related issue has to do with smoothing the interfaces between small and large three-phase transformers (i.e., smoothing the interface between design lines 4 and 5). Stakeholders asserted that where the small and large kVA design lines intersect, DOE's proposal might contain a discontinuity, such as a lower efficiency requirement for a higher kVA rating or a significant change in the incremental step increases in efficiency with kVA. Stakeholders suggested that DOE address these discontinuities in the final rule through the use of a smoothing function. ERMCO, Howard Industries, HVOLT, and NEMA are the stakeholders who commented on the discontinuities between small and large three-phase transformers. (Public Meeting Transcript, No. 108.6 at pp. 72, 76, 77, and 78; ERMCO, No. 96 at p. 1; Howard Industries, No. 143 at pp. 1-2)
Third, DOE received comments which called to its attention the problems associated with setting the standard for design line 4 at TSL3 or TSL4 (TSL3 and TSL4 are the same for this design line). NPCC suggested that DOE regulate design line 4 at the TSL2 level. (NPCC, No. 141 at p. 4) Similarly, ERMCO commented that while designs based on silicon core steel can meet TSL3 and TSL4 for DOE's chosen representative units, there are examples of primary voltages that are specified and purchased by utilities today which would not be able to meet levels higher than TSL2 using conventional silicon core steel. (ERMCO, No. 113 at pp. 1-2) In response, DOE conducted a voltage sensitivity analysis considering higher primary voltages and BIL ratings on design lines 2, 3, 4 and 5, and determined that the greatest impact of the higher primary voltages was experienced by design line 4. (See TSD Appendix 5D) DOE agrees with ERMCO's assertion that certain primary voltages, when specified for design line 4, cannot meet TSL4 (or TSL3) using conventional silicon core steel. Furthermore, the DOE customer choice model (in the LCC analysis) indicates that, for the design line 4 representative unit, approximately 95 percent of the transformers selected would be constructed with amorphous cores at TSL3 and TSL4. While TSL3 and TSL4 could be met for all voltage classes using amorphous material, DOE has decided not to regulate to a level that would require amorphous material, for reasons having to do with material availability and the limited number of ribbon suppliers. (see Section V.A.7.c above and Section V.B.1.b below)
In response to the above comments, DOE created TSLs A, B, C and D. Each of these additional TSLs assures the following: (1) Consistency between
TSLA ensures single-phase versus three-phrase consistency by mapping from the single-phase transformers to the three-phase transformers. DOE constructed TSLA based on first selecting the highest design line 1 efficiency level considered in the proposed rule that does not exceed 99.26 percent, which is 99.19 percent (to ensure that the level for design line 4 is not at TSL3 or higher). DOE then chose this same level of 99.19 percent for the three-phase analog, design line 4 (to achieve single-phase versus three-phase consistency). For design line 2, DOE chose the level of 99.04 percent by implementing 0.75 scaling based on design line 1 (to achieve continuity between adjacent design lines). For the last single-phase design line, design line 3, DOE chose the highest efficiency level considered in the proposed rule that yields positive mean LCC savings and does not create a significant discontinuity with design line 1, that is, 99.54 percent efficient. It used this same level for the three-phase analog, design line 5 (to achieve single-phase versus three-phase consistency).
TSLB ensures single-phase versus three-phrase consistency by mapping from the three-phase transformers to the single-phase transformers (i.e., the mapping direction is reversed). DOE constructed TSLB by choosing the highest design line 4 efficiency level considered in the proposed rule that does not exceed 99.26 percent, which is 99.08 percent (to ensure that the level for design line 4 is not at TSL3 or higher). DOE chose this same level of 99.08 percent for the single-phase analog, design line 1 (to achieve single-phase versus three-phase consistency). For design line 2, DOE chose the level of 98.91 percent by implementing 0.75 scaling based off on design line 1 (to achieve continuity between adjacent design lines). For the other three-phase design line, design line 5, DOE chose the highest efficiency level considered in the proposed rule that yields positive mean LCC savings, 99.47 percent. It used this same level for the single-phase analog, design line 3 (to achieve single-phase versus three-phase consistency).
TSLC is similar to TSLB; the only difference is in the treatment of the large kVA transformers (design line 3 and design line 5). For TSLC, instead of choosing the highest NOPR efficiency level for design line 5 that yields positive mean LCC savings (99.47 percent), DOE chose the next lower level of 99.42 percent. DOE used this same level for the single-phase analog, design line 3 (to achieve single-phase versus three-phase consistency).
TSLD is based on TSLC except it rounds down the single-phase levels to TSLs evaluated in the proposed rule. This reduces the single-phase versus three-phase consistency established in TSLC, but results in the creation of a TSL—similar to TSLC—that is based on purely NOPR levels. The resulting levels are 99.04 percent, 98.79 percent, 99.38 percent, 99.08 percent, and 99.42 percent for design lines 1-5, respectively. These correspond to the NOPR TSLs 4, 4, 2, 2, and 3 for design lines 1 through 5, respectively. While TSLD has better consistency between single and three-phase transformers than other TSLs that were considered in the NOPR, as shown in Appendix 8I, this standard level is not perfectly consistent between single and three-phase transformers (as are TSLA, TSLB and TSLC). In particular, at TSLD, the three-phase standard is higher (more stringent) than the single-phase standard at all kVA ratings.
NEMA and GE Energy both commented on the issue of non-standard capacity (i.e., kVA) ratings. GE Energy requested clarification on how it should derive the efficiency requirement for transformers which are covered within the scope of this rulemaking, but have a kVA rating that does not appear in the table of efficiency values—for example, 458 kVA. (GE Energy, No. 145 at p. 1) NEMA commented that they believe it would be problematic if DOE were to hold efficiency standards for any kVA ratings not appearing in the tables to the next higher efficiency standard. (NEMA, No. 174 at pp. 3-4) GE Energy and NEMA both recommend that DOE adopt a linear interpolation to scale the efficiency values of the kVA ratings in the table that are immediately above and below the rating that isn't shown in the table. (GE Energy, No. 145 at p. 1; NEMA, No. 174 at p. 4) DOE discussed this issue with its technical experts and reviewed industry practice for the treatment of transformers that have non-standard kVA values. DOE is today adopting this stakeholder recommendation, namely that transformers with kVA ratings not appearing in the standards tables would be subject to standard levels that are calculated by means of linear interpolation from the efficiency requirements of the two kVA ratings immediately above and below. For clarity, DOE is providing an example of the linear interpolation equation for a 458 kVA three-phase medium-voltage dry-type distribution transformer with a 60 kV BIL rating. As shown in Table I.2, the kVA ratings and efficiency requirements immediately above and below 458 kVA are 500 kVA at 98.83% and 300 kVA at 98.67%. This data enables the user to prepare a table with the five known values (i.e., x
The kVA and efficiency values (i.e., x
For this example, the resultant efficiency requirement (i.e., y
For today's final rule, DOE examined 10 TSLs for liquid-immersed distribution transformers (consisting of the six TSLs DOE considered in the NOPR plus the four new TSLs discussed in section V.C. of this Notice) and six TSLs for medium-voltage, dry-type distribution transformers (the same TSLs that DOE considered in the NOPR since these levels had no single-phase/three-phase consistency issues). Table VI.1 presents the TSLs analyzed and the efficiency level within each TSL for each transformer design line. DOE used the specific transformers from the design lines to represent a range of distribution transformers within the each product class. This table presents the efficiency values of TSLs A, B, C, and D, in the context of the other efficiency values considered in TSL1 through TSL6. TSL6 is the maximum
Table VI.1 illustrates how the recombined TSLs A, B, C, and D have much greater consistency between the single-phase efficiency levels and the levels for the three-phase counterparts. For example, design line 4 is the three-phase design line that is equivalent to using three design line 1 transformers, while design line 5 is the three-phase design line that is equivalent to three transformers from design line 3. For TSLs A, B, and C, the efficiency levels for DL4 and DL1, and for DL5 and DL3 are equal.
DOE presents the tables of efficiency values for all the preferred kVA ratings (i.e., not only the representative kVA ratings that were analyzed) at each of the various TSLs in the Environmental Assessment report, which is included in the Technical Support Document.
To estimate the energy savings through 2038 due to new standards, DOE compared the energy consumption of distribution transformers under the base case (no new standards) to energy consumption of distribution transformers under the standards. Table VI.2 summarizes DOE's NES estimates. DOE based these estimates on the results of the revised NIA, which uses energy price forecasts from
Commercial consumers will be affected by the standards since they will experience higher purchase prices and lower operating costs. To estimate these impacts, DOE calculated the LCC and PBP for the ten trial standards levels considered in this proceeding. DOE's LCC and PBP analyses provided five outputs for each TSL, which are reported in Tables VI.3 through VI.12 below. The first three outputs are the proportion of transformer purchases where the purchase of a design that complies with the TSL would create a net life-cycle cost, no impact, or a net life-cycle savings for the consumer, respectively. The fourth output is the average net life-cycle savings from purchase of a design complying with the standard.
Finally, the fifth output is the PBP for the average consumer purchase of a design that complies with the TSL. The PBP is the number of years it would take for the customer to recover, as a result of energy savings, the increased costs of higher efficiency equipment, based on the operating cost savings from the first year of ownership. The PBP is an economic benefit-cost measure that uses benefits and costs without discounting. However, DOE based the PBP analysis for distribution transformers on energy consumption under actual in-service loading conditions, whereas, in accordance with EPCA, the rebuttable presumption test is based on consumption as determined using loading levels prescribed by the DOE test procedure. As discussed above, while DOE examined the rebuttable presumption criteria (see TSD section 8.7), it determined today's standard levels to be economically justified through an analysis of the economic impacts of increased efficiency levels pursuant to section 325(o)(2)(B)(i) of EPCA. (42 U.S.C. 6295(o)(2)(B)(i)) Detailed information on the LCC and PBP analyses can be found in TSD Chapter 8.
DOE estimated commercial consumer subgroup impacts by determining the LCC impacts of the TSLs on rural electric cooperatives and municipal utilities. DOE's analysis indicated that, for municipal utilities, the economics are similar to those of the national sample of utilities, but that rural cooperatives will achieve smaller operating cost savings from higher standards than will the average utility. Consequently, rural cooperatives, but not municipal utilities, will generally have a longer payback period for any given standard level than will the average utility. 71 FR 44389-90. (See TSD Chapter 11 for information on the LCC Subgroup Analysis) Thus, on average, rural cooperatives will benefit less per affected transformer from efficiency improvements than either the average utility or municipal utilities.
For each of the two commercial consumer subgroups, Table VI.13 shows the mean LCC savings at each TSL, and Table VI.14 shows the mean PBP (in years). DOE included only the liquid-immersed design lines in this analysis since those types are more than ninety percent of the transformers purchased by electric utilities.
Chapter 11 of the TSD explains DOE's method for conducting the commercial consumer subgroup analysis and presents the detailed results of that analysis.
DOE determined the economic impacts of today's standard on manufacturers, as described in the proposed rule. 71 FR 44363, 44376, 44381-44383, 44390-44393. As described in Section IV.F above, for this final rule DOE modeled the partial conversion to amorphous core construction for TSL3, TSL4, and TSLA (with no change in the methodology for TSL5 and TSL6). DOE analyzed manufacturer impacts under two scenarios—the ‘preservation-of-gross-margin-percentage’ scenario and the ‘preservation-of-operating-profit’ scenario. Under the preservation-of-gross-margin-percentage scenario, DOE applied a single uniform “gross margin percentage” markup across all efficiency levels. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase. Under the preservation-of-operating-profit scenario, operating profit is defined as earnings before interest and taxes. The implicit assumption behind this markup scenario is that the industry can maintain its operating profit (in absolute dollars) after the standard. The industry would do so by passing through its increased costs to customers without increasing its operating profits in absolute dollars. DOE fully describes these two scenarios and the complete manufacturer impact analysis in Chapter 12 of the TSD.
Using the two markup scenarios, Tables VI.15 and VI.16 show the estimated impacts for the liquid-immersed and medium-voltage, dry-type transformer industries, respectively. These tables show the change in INPV, which is the primary metric from the MIA. DOE calculated the INPV in the base and standards cases by discounting the projected free cash flows at the real corporate discount rate of 8.9 percent. This method of calculating INPV provides one measure of the value of the industry in present value terms. The impact of new standards on INPV is then the difference between the INPV in the base case and the INPV in the standards case (with new standards). The tables also present the product conversion expenses and capital investments that the industry would incur at each TSL. Product conversion expenses include engineering, prototyping, testing, and marketing expenses incurred by a manufacturer as it prepares to come into compliance with a standard. Capital investments are the one-time outlays for equipment and buildings required for the industry to come into compliance (i.e., conversion capital expenditures).
The proposed rule provides additional information on the methodology, assumptions, and results of this analysis. 71 FR 44382, 44390, 44399-44400, 44403. Chapter 12 of the TSD explains DOE's method for conducting the manufacturer impact analysis and presents the detailed results of that analysis.
For liquid-immersed transformers, DOE expects no significant, discernable direct employment impacts among transformer manufacturers for TSLs 1, 2, D, C, B, 3, and 4, but potentially significant changes in employment for TSLA (44 percent increase), TSL5 (18 percent increase), and TSL6 (38 percent increase). Employment impacts are changes in the numbers of employees involved with transformer production at the manufacturing facilities. These estimated changes are due to the increased labor time needed to construct the cores and assemble the transformers. At these higher TSLs, the cores tend to be larger and the processing time per pound of amorphous material is higher than that of silicon steel—both of these effects lead to the need for more labor. Thus, the larger cores would increase the direct employment at transformer manufacturing facilities.
These conclusions—which are separate from any conclusions regarding employment impacts on the broader U.S. economy—are based on modeling results that address neither the possible relocation of domestic transformer manufacturing employment to lower labor-cost countries, nor the possibility of outsourcing amorphous core production under TSLs 3, 4, A, 5 and 6 to companies in other countries. The reported modeling results simply capture the changes in direct labor needed to produce transformers at each TSL. DOE discussed this scenario of outsourcing amorphous core production to other countries during several interviews with manufacturers of liquid-immersed transformers, and it appears that outsourcing would be a serious consideration for some liquid-immersed transformer manufacturers under TSLs 3, 4, A, 5, and 6.
In addition, as discussed in the proposed rule, DOE expects today's standard to have a relatively minor differential impact on small manufacturers of liquid-immersed distribution transformers. 71 FR 44382, 44392-44393, 44401-44403. For medium-voltage, dry-type manufacturers, however, all manufacturers would have to develop designs to enable compliance with TSL3 or higher, and small businesses would be at a relative disadvantage.
DOE expects no significant, discernable employment impacts among medium-voltage, dry-type transformer manufacturers for any TSL compared to the base case. DOE's conclusion regarding employment impacts in the medium-voltage, dry-type transformer industry is separate from any conclusions regarding employment impacts on the broader U.S. economy. Increased employment levels are not expected at higher TSLs because the core-cutting equipment typically purchased by the medium-voltage, dry-type industry is highly automated and includes core-stacking equipment.
Another concern conveyed by some manufacturers of medium-voltage, dry-type transformers during the interviews is the potential impact stemming from cast-coil transformer competitiveness at higher TSLs. These manufacturers claimed that setting a standard above a certain threshold may trigger a market switch from open-wound ventilated transformers to cast-coil transformers. Manufacturers suggest that this crossover point likely occurs at TSL3 and higher. If the market does shift to cast-coil transformers, there is a risk of imported, pre-fabricated cast coils dominating the market in the long term. This would have a significant impact on domestic industry value and domestic employment in the medium-voltage, dry-type industry.
The basis for the conclusions presented above is set forth in Chapter 12 of the TSD, Sections 12.4.4.1 and 12.5.4.1 for liquid-immersed and medium-voltage, dry-type transformers, respectively.
For the liquid-immersed distribution transformer industry, DOE believes that there are only minor production capacity implications for a standard at TSLs 1, 2, D, C, and B. At TSL6, all liquid-immersed design lines would have to convert to amorphous technology, the most energy efficient core material. At TSL5, three design lines would have to convert to amorphous core designs. For TSLs A, 4, and 3, there would likely be partial conversion to amorphous core designs for one or two design lines. Conversion to amorphous core designs would render obsolete a large portion of the equipment used today for the affected design lines (e.g., annealing furnaces, core-cutting and winding equipment). Based on the manufacturer interviews, DOE believes that TSLs 3, 4, A, 5, and 6 would cause liquid-immersed transformer manufacturers to decide whether they would need to invest in retooling their production equipment for amorphous technology or attempt to purchase pre-fabricated amorphous cores (for the affected design lines). For TSL6, some manufacturers indicated that they would close their companies, rather than attempt to manufacturer transformers at that standard level. Manufacturers also indicated that, if they were to choose to produce amorphous cores themselves, they would face a critical decision about whether or not to relocate outside of the U.S., since much of their equipment would become obsolete. As mentioned above, if manufacturers choose to purchase pre-fabricated amorphous cores, they might purchase them from foreign manufacturers.
Energy conservation standards will affect the medium-voltage, dry-type industry's manufacturing capacity because the core stack heights (or core steel piece length) will increase and laminations will become thinner. Thinner laminations require more cuts and are more cumbersome to handle. Therefore, manufacturers would have to invest in additional core-mitering machinery or modifications and improvements to recover any losses in
Converting from a company's current basic product line involves designing, prototyping, testing, and manufacturing a new product. These tasks have associated capital investments and product conversion expenses. Small businesses, because of their limited access to capital and their need to spread conversion costs over smaller production volumes, may be affected more negatively than major manufacturers by an energy conservation standard. For these reasons, DOE specifically evaluated the impacts on small businesses of an energy conservation standard.
The Small Business Administration defines a small business, for the distribution transformer industry, as a business that has 750 or fewer employees. DOE estimates that, of the approximately 25 U.S. manufacturers that make liquid-immersed distribution transformers, about 15 of them are small businesses. About five of the small-liquid-immersed-transformer businesses have fewer than 100 employees. DOE estimates that, of the 25 U.S. manufacturers that make medium-voltage, dry-type distribution transformers, about 20 of them are small businesses. About one-half of the medium-voltage, dry-type small businesses have fewer than 100 employees. Medium-voltage, dry-type transformer manufacturing is more concentrated than liquid-immersed transformer manufacturing; the top three companies manufacture over 75 percent of all transformers in this category.
As discussed in the proposed rule, DOE expects minimum efficiency standards to have a relatively minor differential impact on small manufacturers of liquid-immersed distribution transformers. 71 FR 44401-44402. Although DOE proposed to adopt TSL2, and is today promulgating a standard higher than that for all liquid-immersed design lines other than design line 4, DOE believes that the reasoning presented in the proposed rule is still relevant and valid: DOE does not expect today's standard to have a significant economic impact on a substantial number of small manufacturers of liquid-immersed transformers. Since the standard does not require manufacturers to change manufacturing equipment, DOE concludes that the standards adopted today will have minor differential impact on small manufacturers of liquid-immersed transformers. This is based on the fact that manufacturing equipment and materials that are currently available will be used to meet the standard which will provide manufacturers flexibility in meeting the standards, and manufacturers will not be required to re-tool in order to meet the standards. (See Section VII.B.4). For medium-voltage, dry-type manufacturers, DOE stated in the proposed rule that it would anticipate some small business impacts at all TSLs. However, DOE believes that the incremental impact on small businesses in moving from TSL2 to TSL3 is greater than that in moving from TSL1 to TSL2 (see Section VII.B.4 for a more detailed discussion). DOE explicitly considered impacts on small businesses in selecting TSL2 and rejecting higher levels for medium-voltage, dry-type transformers. 71 FR 44382, 44392-44393, 44401-44403. See section VII.B on the Regulatory Flexibility Act for more discussion on this point.
The NPV analysis estimates the cumulative benefits or costs to the Nation that would result from particular standard levels. While the NES analysis estimates the energy savings from a proposed energy conservation standard, the NPV analysis provides estimates of the national economic impacts of a proposed standard relative to a base case of no new standard. Tables VI.17 and VI.18 provide an overview of the NPV results, using both a seven percent and a three percent real discount rate. See TSD Chapter 10 for more detailed NPV results.
DOE also estimated the national employment impacts that would result from each of the TSLs. As discussed in the proposed rule, 71 FR 44383-44384, 44394, DOE expects the net monetary savings from standards to be redirected to other forms of economic activity. DOE also expects these shifts in spending and economic activity to affect
As shown in Tables VI.19 and VI.20, DOE estimated net indirect employment impacts (i.e., those changes of employment in the larger economy, other than in the manufacturing sector being regulated) from today's distribution transformer energy conservation standards to be positive. According to DOE's analysis, the number of jobs that may be generated by 2038 through indirect impacts ranged from 4,000 to 14,000 for liquid-immersed transformers, and from 400 to 1,500 for medium voltage, dry-type transformers for the range of TSLs considered in this rulemaking. While DOE's analysis suggests that the distribution transformer standards could result in a very small increase in the net demand for labor in the economy, relative to total national employment, this increase would likely be sufficient to offset fully any adverse impacts on employment that might occur in the distribution transformer or energy industries. For details on the employment impact analysis methods and results, see TSD Chapter 14.
As discussed in section V.A.4 of the proposed rule, DOE believes that, because of the steps it had taken in establishing classes of products and in evaluating design options and the impact of potential standard levels (71 FR 44394), as well as the additional steps taken in today's final rule, including the consideration of design constraints for vault-transformers (see section V.B.4.a) and the evaluation of higher BIL voltages (see section V.A.1.a), the new standards it is adopting today will not lessen the utility or performance of distribution transformers. (See also TSD, Chapters 4 and 5)
As previously discussed in the NOPR, 71 FR 44363-44364, 44394, and in section III.D.5 of this preamble, DOE considers any lessening of competition that is likely to result from standards. The Attorney General determines the impact, if any, of any such lessening of competition.
DOJ concluded that the distribution transformer standards contained in the proposed rule may adversely affect competition with respect to distribution transformers used in industries, such as underground coal mining, where physical conditions limit the size of the equipment that may be effectively utilized. DOJ understands that manufacturers would not be able to satisfy the proposed standard without increasing the size (or decreasing the power) of each class of distribution transformer. Mining companies facing space constraints would incur significantly increased costs due to enlarging the required installation space (which, for example, could involve removal of solid rock around coal seams in underground mines) or reconfiguring the size and number of each class of distribution transformer at each site. The resulting cost increases could constitute production inefficiencies that could make certain products less competitive. For example, the rule could, by raising the costs of certain coal mines, adversely affect production decisions at those mines and potentially result in increased use of less efficient energy alternatives. DOJ urged the DOE to consider these concerns carefully in its analysis, and to consider creating an exception for distribution transformers used in industries with space constraints. (DOJ, No. 157 at p.2) DOE considered this input from DOJ, along with comments from several stakeholders, and as discussed in section IV.A.2 of this preamble, decided to treat space-constrained underground mining transformers as a separate product class in this final rule, and not to apply today's standards to these transformers. DOE is also reserving a subsection in section 431.196 for underground mining transformer efficiency standards. Energy conservation standards for underground mining transformers are not included as part of today's final rule and will be determined at a later date.
The Secretary of Energy recognizes the need of the Nation to save energy. Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts or costs of energy production. The energy savings from distribution transformer standards result in reduced emissions of CO
As discussed in the NOPR, the Clean Air Interstate Rule (CAIR), which the U.S. Environmental Protection Agency (EPA) issued on March 10, 2005, will permanently cap emissions of NO
DOE also calculated discounted values for future emissions, using the same seven percent and three percent real discount rates that it used in calculating the NPV. Table VI.21 also shows the discounted cumulative emissions impacts for both liquid-immersed and dry-type, medium-voltage transformers.
Emissions are roughly proportional to energy savings. The emissions reductions are slightly higher in the final rule analysis compared to DOE's NOPR analysis because of the slightly greater amount of coal-generated electricity in the updated
In developing today's standard, the Secretary took into consideration four ‘Other Factors’: (1) Availability of high BIL primary voltages (see TSD Appendix 5D); (2) materials price sensitivity analysis (see TSD Appendices 5C and 8F); (3) materials availability analysis (see TSD Appendix 8H); and (4) consistency between single-phase and three-phase designs (for liquid-immersed distribution transformers only, see TSD Appendix 8I). Each of these factors is described briefly in section V.7 of today's rule and discussed in some detail in other parts of today's rule. Specifically section V.A.1.a discusses voltage issues, section V.A.1.b discusses materials price issues, in section V.A.1.d describes materials availability issues, and section V.B.7.d describes single-phase and three-phase consistency issues.
EPCA contains criteria for prescribing new or amended energy conservation standards. DOE must prescribe standards only for those distribution transformers for which DOE: (1) has determined that standards would be technologically feasible and economically justified and would result in significant energy savings, and (2) has prescribed test procedures. (42 U.S.C. 6317(a)) Moreover, DOE has analyzed whether today's standards for distribution transformers will achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (See 42 U.S.C. 6295(o)(2)(A), 6316(a), and 6317(a) and (c)) Today's final rule will not result in the unavailability in the U.S. of any covered product type (or class) of transformer with performance characteristics (i.e., reliability, features, sizes, capacities and voltages) that are substantively the same as those generally available in the U.S. prior to these new standards.
In determining whether a standard is economically justified, DOE determines whether the benefits of the standard exceed its costs. (See 42 U.S.C. 6295(o)(2)(B)(i)) Any new or amended standard for distribution transformers must result in significant energy savings. (42 U.S.C. 6317(a); 42 U.S.C. 6295 (o)(3)(B); see 42 U.S.C. 6295(o)(2)(B))
In selecting energy conservation standards for distribution transformers, DOE started by comparing the maximum technologically feasible levels with the base case, and determined whether those levels were economically justified. Upon finding the maximum technologically feasible levels not to be justified, DOE analyzed the next lower TSL to determine whether that level was economically justified. DOE repeated this procedure until it identified a TSL that was economically justified.
Tables VI.22 and VI.23 summarize DOE's quantitative analysis results for each TSL. Each table presents the results or, in some cases, a range of results, for the underlying design lines for liquid-immersed transformers (Table VI.22), and medium-voltage, dry-type transformers for (Table VI.23). The range of values reported in these tables for LCC, payback, and average increase in consumer equipment cost before installation encompasses the range of results DOE calculated for either the liquid-immersed or medium-voltage,
First, DOE considered the most efficient level (max tech), which would save an estimated total of 7.37 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSL6 would have a net cost of $23.3 billion and $26.1 billion at seven percent and three percent discount rates, respectively. At this level, the majority of customers would experience an increase in life-cycle costs. As shown in Table VI.22, only 0.5-15.2 percent of customers would experience lower life-cycle costs, depending on the design line. Under the 2006 materials price sensitivity analysis, this percentage reduces to 0.3 to 8.6 percent of customers. The payback periods for the five-year average materials price scenario at this standard level are between 21.6 and 52.1 years, some of which exceed the anticipated operating life of the transformer (i.e., 32 years). Under the 2006 materials price sensitivity analysis, the paybacks periods are longer, ranging from 26.7 to 58.3 years. The consumer equipment cost before installation would more than double for all design lines, a significant increase for consumers. The impacts on manufacturers would be very significant because TSL6 would require a complete conversion to amorphous core technology. These conversion costs would reduce the INPV by as much as 95 percent under the preservation-of-operating-profit scenario. DOE estimates that $49 million of existing assets would be stranded (i.e., rendered useless) and $178 million of conversion capital expenditures would be required to enable the industry to manufacture compliant distribution transformers. Additionally, TSL6 would be disruptive for manufacturers because it does not achieve the consistent treatment of single-phase and three-phase transformers (see Appendix 8I). This lack of consistency may cause large market distortions (i.e., shifts between single-phase and three-phase transformers) and impact manufacturers or plants that specialize in either single-phase or three-phase construction. Furthermore, DOE is concerned that TSL6 requires all distribution transformers to be constructed of amorphous material, and there isn't sufficient amorphous-ribbon production capacity to replace silicon core steel. Moreover, DOE's primary voltage sensitivity analysis found that TSL6 cannot be achieved using even the most efficient conventional silicon steels for any of the four design lines studied (see TSD Appendix 5D), and thus TSL6 could eliminate certain voltages from the marketplace unless amorphous core transformers were constructed.
The energy savings at TSL6 would reduce the installed generating capacity by 7.2 gigawatts (GW), or roughly 18 large, 400 MW power plants. The estimated emissions reductions through this same time period are 674 Mt of CO
Next, DOE considered TSL5, which would save an estimated total of 5.07 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSL5 would have a net cost of $4.89 billion at a seven percent discount rate or a net saving of $1.40 billion at a three percent discount rate. Under the five-year average materials price scenario, between 15.2 to 32.3 percent of customers would experience lower life-cycle costs, and 57.7 to 84.8 percent of customers would have increased life-cycle costs, depending on the design line. Under the 2006 materials price sensitivity analysis, the percentage of customers with increased life-cycle costs ranges between 56.4 and 91.4 percent. The payback periods for the five-year average material price at this standard level are between 19.3 and 23.4 years. Under the 2006 materials price sensitivity analysis, these payback periods range between 18.8 and 26.7 years. The consumer equipment cost before installation would increase by as much as 138.6 percent for one of the design lines analyzed, a significant increase for consumers. The impacts on manufacturers would be very significant because TSL5 would require partial conversion to amorphous core technology. The conversion costs would contribute to as much as a 41 percent reduction in the INPV under the preservation-of-operating-profit scenario. DOE estimates that $13 million of existing assets would be stranded and approximately $41 million in conversion capital expenditures would be required to enable the industry to manufacture compliant
The energy savings at TSL5 would reduce the installed generating capacity by 5.0 GW, or roughly 13 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 464 Mt of CO
Next, DOE considered TSLA, which would save an estimated total of 4.07 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSLA would have a net cost of $1.89 billion at a seven percent discount rate or a net saving of $4.47 billion at three percent discount rate. Under the five-year average materials price scenario, 20.3 to 54.6 percent of customers would experience lower life-cycle costs, while between 32.4 to 79.6 percent of customers would have increased life-cycle costs. Under the 2006 materials price sensitivity analysis, 88.5 percent of consumers would experience a net increase in life-cycle costs for one design line. Under the five-year average materials price scenario, the payback periods at this standard level are between 10.6 and 24.7 years. Under the 2006 materials price sensitivity analysis, the payback periods are longer, ranging between 10.7 and 29.1 years. The consumer equipment cost before installation would increase by as much as 60.6 percent for one of the design lines analyzed, a significant increase for consumers. The impacts on manufacturers would be significant because TSLA would likely trigger partial conversion to amorphous core technology (design lines 4 and 5). The conversion costs would contribute to as much as a 28 percent reduction in the INPV under the preservation-of-operating-profit scenario. DOE estimates that $3.5 million of existing assets would be stranded and approximately $18 million in conversion capital expenditures would be required to enable the industry to manufacture compliant transformers. Furthermore, DOE is concerned that TSLA requires 84 percent of one design line to be constructed of amorphous material, and there may not be sufficient amorphous-ribbon production capacity to replace silicon core steel for that design line and others that use amorphous material. Moreover, DOE's primary voltage sensitivity analysis found that TSLA cannot be achieved using even the most efficient conventional silicon steels for two of the four design lines studied (see TSD Appendix 5D), and thus TSLA could eliminate certain voltages from the marketplace unless amorphous core transformers were constructed. As explained above, DOE has decided not to set a standard that requires the use of amorphous material, even if the requirement would affect only a small portion of the market.
The energy savings at TSLA would reduce the installed generating capacity by 3.9 GW, or roughly 10 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 369 Mt of CO
Next, DOE considered TSL4, which would save an estimated total of 3.00 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSL4 would result in a net savings of $2.13 billion and $9.33 billion at seven percent and three percent discount rates, respectively. Under the five-year average materials price scenario, lower life-cycle costs would be experienced by between 33.2 and 68.2 percent of customers, depending on the design line. Under this same materials price scenario, 12.4 to 44.3 percent of customers would have increased life-cycle costs. Under the 2006 materials price sensitivity analysis, increased life-cycle costs are experienced by up to 65.2 percent of customers for one design line. Under the five-year average materials price scenario, the payback periods are between 7.8 and 11.4 years. Under the 2006 materials price sensitivity analysis, the payback periods increase to between 10.7 and 19.4 years. The consumer equipment cost before installation would increase by 45.9 percent for one design line, a significant increase for transformer consumers. The LCC consumer choice model estimates that for one design line, approximately 95 percent of the transformers sold would have amorphous cores. The impacts on manufacturers would be significant because TSL4 would therefore likely trigger partial conversion to amorphous core technology (design line 4). The manufacturer conversion costs would contribute to as much as an 18 percent reduction in the INPV under the preservation-of-operating-profit scenario. DOE estimates that $8.2 million of existing assets would be stranded and approximately $17 million in conversion capital expenditures would be required to enable the industry to manufacture compliant transformers. Additionally, TSL4 would be disruptive for manufacturers because it does not achieve the consistent treatment of single-phase and three-phase transformers (see Appendix 8I).
The energy savings at TSL4 would reduce the installed generating capacity by 2.9 GW, or roughly 7 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 272 Mt of CO
Next, DOE considered TSL3, which would save an estimated total of 2.76 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSL3 would result in a net savings of $2.37 billion and $9.17 billion at seven percent and three percent discount rates, respectively. Under the five-year average materials price scenario, lower life-cycle costs would be experienced by between 31.9 and 68.2 percent of customers, while between 2.0 to 18.9 percent of customers would have increased life-cycle costs. Under the 2006 materials price sensitivity analysis, increased life-cycle costs are experienced by between 11.1 and 48.3 percent of customers. Under this five-year average materials price scenario, the payback periods are between 2.4 and 11.4 years. Under the 2006 materials price sensitivity analysis, the payback periods are between 9.8 and 17.8 years. The consumer equipment cost before installation would increase by 45.9 percent for one design line, a significant increase for transformer consumers. The LCC consumer choice model estimates that for one design line, approximately 95 percent of the transformers sold would have amorphous cores. The impacts on manufacturers would be significant because TSL3 would therefore likely trigger partial conversion to amorphous core technology; partial conversion is disruptive in and of itself (but cannot be quantified). The manufacturer conversion costs would contribute to as much as a 17 percent reduction in the INPV under the preservation-of-operating-profit scenario. DOE estimates that $8.2 million of existing assets would be stranded and approximately $17 million in conversion capital expenditures would be required to enable the industry to manufacture compliant transformers. Additionally, TSL3 would be disruptive for manufacturers because it does not achieve the consistent treatment of single-phase and three-phase transformers (see Appendix 8I). This lack of consistency may cause large market distortions (i.e., shifts between single-phase and three-phase transformers) and impact manufacturers or plants that specialize in either single-phase or three-phase construction. Moreover, DOE's primary voltage sensitivity analysis found that TSL3 cannot be achieved using even the most efficient conventional silicon steels for one of the four design lines studied (see TSD Appendix 5D), and thus TSL3 could eliminate certain voltages from the marketplace unless amorphous core transformers were constructed. As explained above, DOE has decided not to set a standard that requires the use of amorphous material, even if the requirement would affect only a small portion of the market.
The energy savings at TSL3 would reduce the installed generating capacity by 2.7 GW, or roughly 7 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 248 Mt of CO
Next, DOE considered TSLB, which would save an estimated total of 2.75 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSLB would result in a net savings of $1.11 billion and $7.26 billion at seven percent and three percent discount rates, respectively. Under the five-year average materials price scenario, lower life-cycle costs would be experienced by between 36.5 and 58.7 percent of customers, while 8.1 to 42.5 percent of customers would have increased life-cycle costs. Under the 2006 materials price sensitivity analysis, increased life-cycle costs are experienced by between 17.7 and 53.8 percent of customers. Under the five-year average materials price scenario, the payback periods are between 8.9 and 15.7 years, which at most is approximately half the anticipated operating life of the transformer. Under the 2006 materials price sensitivity analysis, the payback periods are slightly longer, ranging from 10.2 to 20.8 years. The manufacturer conversion costs would contribute to an 8 percent reduction in the INPV under the preservation-of-operating-profit scenario. TSLB concerns DOE because most (i.e., 87 percent ) of the transformers manufactured for design line 5 at this level would require the most efficient conventional silicon core steel, M2. The LCC consumer choice model shows that no transformers in design line 5 would be built with M3 (or lower grade) core steel. DOE is uncertain whether there would be adequate supplies of M2 steel and whether this steel would be available to all manufacturers. These factors may force manufacturers to more expensive options, including amorphous core material.
The energy savings at TSLB would reduce the installed generating capacity by 2.7 GW, or roughly 7 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 251 Mt of CO
Next, DOE considered TSLC, which would save an estimated total of 2.61 quads of energy through 2038, a significant amount of energy. For the Nation as a whole, TSLC would result in a net savings of $1.11 billion and $6.95 billion at seven percent and three percent discount rates, respectively. Under the five-year average materials price scenario, lower life-cycle costs would be experienced by between 36.5 and 58.7 percent of customers, depending on the design line. At this level, 2.5 to 42.5 percent of customers would have increased life-cycle costs, depending on the design line. Under the 2006 materials price sensitivity analysis, increased life-cycle costs will be experienced by between 13.4 and 53.8 percent of customers. Under the five-year average materials price scenario, the payback periods are between 4.3 and 15.7 years, which at most is approximately half the anticipated operating life of the transformer. Under the 2006 materials price sensitivity analysis, the payback periods range between 8.7 and 20.8 years. The conversion costs of manufacturers would contribute to an 8 percent reduction in the INPV under the preservation-of-operating-profit scenario. The quantified impact on manufacturers is not prohibitive. In comparison to TSLB, TSLC does not raise the same material availability concerns for design line 5. At TSLC, the LCC consumer choice model shows that 63% of designs would be constructed with M2 core steel, and 27% would be constructed with M3. DOE is satisfied that this provides reasonable diversity of core steel construction options for manufacturers. Additionally, the voltage sensitivity analysis found that even the highest BIL ratings do not eliminate the use of M3 or M2 core steel for any of the four liquid-immersed design lines analyzed.
The energy savings at TSLC would reduce the installed generating capacity by 2.5 GW, or roughly 6 large, 400 MW powerplants. The estimated emissions reductions through this same time period are 238 Mt of CO
First, DOE considered the most efficient level (max tech), which would save an estimated total of 0.40 quads of energy through 2038. For the Nation as a whole, TSL6 would have a net cost of $80 million at a seven percent discount rate and a net benefit of $1.02 billion at three percent discount rate. At this level, the percentage of customers experiencing lower life-cycle costs would be less than 37.9 percent for the majority of the units analyzed, with one representative unit as low as 21.9 percent. More than three-quarters of transformer customers making purchases in that design line would experience increases in life-cycle cost. Customer payback periods at this standard level for the majority of units analyzed are 13.8 years or greater, with one representative unit as high as 18.7 years. The consumer equipment cost before installation would increase by as much as 95.1 percent for one design line, a significant increase for customers. At TSL6, the impacts on manufacturers would be significant, with this level contributing to a 67 percent reduction in the INPV under the preservation-of-operating-profit scenario. DOE projects that manufacturers would experience negative net annual cash flows during the time period between the final rule and the effective date of the standard, irrespective of the markup scenario. The magnitude of the peak, negative, net annual cash flow would be approximately twice that of the positive-base-case cash flow. DOE is also concerned that, at TSL6, the thin core steels (i.e., M3, HO) selected by the LCC (see TSD Appendix 8H) pose operational difficulties for the type of core-mitering equipment typically purchased by small manufacturers.
Under the 2006 materials price sensitivity analysis, the percentage of transformer customers who would experience higher life-cycle costs increases relative to their life-cycle costs under the average materials price scenario. For the 2006 materials price sensitivity, four of the five design lines have the majority of transformer customers experiencing higher life-cycle costs. Payback periods also increase under the 2006 material price scenario, to between 11.4 and 24.3 years, with four of the five design lines having average payback periods in excess of 20 years.
The energy savings at TSL6 would reduce installed generating capacity by 0.6 GW, or roughly 1.5 large, 400 MW powerplants. DOE estimates the associated emissions reductions through 2038 of 36.9 Mt of CO
Since TSL5 is identical to TSL6
Next, DOE considered TSL4, which would save a total of 0.27 quads of energy through 2038. For the Nation as a whole, TSL4 would have a net savings of $0.45 billion and $1.55 billion at a seven percent and three percent discount rate, respectively. For both discount rates, this TSL represents the maximum NPV for medium-voltage, dry-type distribution transformers. The percentage of customers experiencing lower life-cycle costs would range between 52.6 and 74.4 percent, depending on the design line. Payback periods at this standard level range from 5.9 to 9.6 years. The consumer equipment cost before installation
The energy savings at TSL4 would reduce the installed generating capacity by 0.4 GW, or roughly one large, 400 MW powerplant. DOE estimates associated emissions reductions through 2038 of 24.8 Mt of CO
Next, DOE considered TSL3, which would save an estimated 0.19 quads of energy through 2038. For the Nation as a whole, TSL3 would have a net savings of $0.38 billion and $1.18 billion at a seven percent and three percent discount rate, respectively. The percentage of transformer customers who would experience lower life-cycle costs ranges between 47.2 and 76.1 percent, depending on the design line, with payback periods of 7.0 years or less. The impacts on manufacturers at TSL3 would be significant, contributing to as much as a 25 percent reduction in the INPV under the preservation-of-operating-profit scenario. In addition, DOE projects the net annual cash flows to be negative during the time period between the final rule and the effective date of the standard, irrespective of the markup scenario. The magnitude of the peak negative net annual cash flow would be approximately one-third of the positive-base-case cash flow. DOE is also concerned that, at TSL3, the thin core steels (i.e., M3, HO) selected by the LCC (see TSD Appendix 8H) pose operational difficulties for the type of core-mitering equipment typically purchased by small manufacturers. Under the 2006 materials price sensitivity analysis, the percentage of transformer customers who would experience higher life-cycle costs increases relative to their life-cycle costs under the average materials price scenario. For the 2006 materials price sensitivity, one design line has the majority of transformer customers experiencing higher life-cycle costs. Payback periods also increase under the 2006 material price scenario, nearly doubling with respect to payback periods for the five-year average material price.
The energy savings at TSL3 would reduce the installed generating capacity by 0.2 GW, or roughly 0.5 of a large, 400 MW powerplant. DOE estimates the associated emissions reductions through 2038 of 17.1 Mt of CO
Next, DOE considered TSL2, which would save an estimated total of 0.13 quads of energy through 2038. For the Nation as a whole, TSL2 would have a net savings of $0.28 billion and $0.85 billion at a seven percent and three percent discount rate, respectively. The percentage of transformer customers experiencing lower life-cycle costs ranges between 37 and 67 percent, depending on the design line, with payback periods of six years or less. DOE considers impacts on manufacturers at this standard level (at most a 15 percent reduction in the INPV under the preservation-of-operating-profit scenario) to be reasonable. At TSL2, DOE is satisfied that there is a sufficiently diverse variety of core steels selected by the LCC (see TSD Appendix 8H), including M5 and M4, so that there will not be operational difficulties for the type of core-mitering equipment typically purchased by small manufacturers.
The energy savings at TSL2 would reduce the installed generating capacity by 0.1 GW, or roughly one-quarter of a large, 400 MW powerplant. DOE estimates associated emissions reductions through 2037 of 11.8 Mt of CO
Today's regulatory action is a “significant regulatory action” under section 3(f)(1) of Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). Accordingly, DOE has prepared and submitted to the Office of Management and Budget (OMB) for review the assessment of costs and benefits required under section 6(a)(3) of the Executive Order. The Executive Order requires agencies to identify the specific market failure or other specific problem that it intends to address that warrants new agency action, as well as assess the significance of that problem, to enable assessment of whether any new regulations is warranted. (Executive Order 12866, § 1(b)(1)).
The specific problem that the energy conservation standard addresses for distribution transformers is that a substantial portion of distribution transformer purchasers are not evaluating the cost of transformer losses when they make distribution transformer purchase decisions. Therefore, distribution transformers are being purchased that do not provide the minimum life-cycle cost service to equipment owners. DOE requested and received data on, and suggestions for evaluating the existence and extent of the problem, which DOE used to complete an assessment in the NOPR of the significance of the problem and the net benefits of regulation.
For distribution transformers, the Institute of Electrical and Electronics Engineers, Inc. (IEEE) has voluntary guidelines for the economic evaluation of distribution transformer losses, IEEE PC57.12.33/D8. These guidelines document economic evaluation methods for distribution transformers that are common practice in the utility industry. But while economic evaluation of transformer losses is common, it is not a universal practice. DOE collected information during the course of the conservation standards rulemaking to estimate the extent to which distribution transformer purchases are evaluated. Data received from the National Electrical Manufacturers Association indicated that these guidelines or similar criteria are applied to approximately 75 percent of liquid-immersed transformer purchases, 50 percent of small capacity medium-voltage dry-type transformer purchases, and 80 percent of large capacity medium-voltage dry-type transformer purchases. Therefore, 25 percent, 50 percent, and 20 percent of distribution transformer purchases do not have economic evaluation of transformer losses. The benefits from the energy conservation standards result from eliminating those distribution transformers designs from the market that are purchased on a purely minimum first cost basis and which are unlikely to be purchased by equipment buyers when the economic value of equipment losses are properly evaluated. Detailed specifications of DOE's consumer purchase behavior model, and the consumer impact estimates are provided in Chapter 8 of the TSD.
Of course, there are likely to be certain “external” benefits resulting from the improved efficiency of units that are not captured by the users of such equipment. These include both environmental and energy security-related externalities that are not already reflected in energy prices such as reduced emissions of greenhouse gases and reduced use of natural gas (and oil) for electricity generation. DOE invited comments on the weight that should be given to these factors in DOE's determination of the maximum efficiency level at which the total benefits are likely to exceed the total burdens resulting from a DOE standard. Discussion of the comments regarding these externalities is provided in sections IV.D.2.e and IV.I.
DOE presented to OIRA for review the draft final rule and other documents prepared for this rulemaking, including the RIA, and has included these documents in the rulemaking record. They are available for public review in the Resource Room of DOE's Building Technologies Program, 1000 Independence Avenue, SW., Washington, DC, (202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
The proposed rule contained a summary of the RIA, which evaluated the extent to which the major alternatives to standards for distribution transformers could achieve significant energy savings at reasonable cost, as compared to the effectiveness of the proposed rule. 71 FR 44400-44401. The complete RIA, formally entitled, “Regulatory Impact Analysis for Proposed Energy Conservation Standards for Electrical Distribution Transformers,” is contained in the TSD prepared for today's rule. The RIA consists of: (1) A statement of the problem addressed by this regulation, and the mandate for government action; (2) a description and analysis of the feasible policy alternatives to this regulation; (3) a quantitative comparison of the impacts of the alternatives; and (4) the national economic impacts of the proposed standards.
As explained in the NOPR, DOE determined that none of the alternatives it examined would save as much energy or have an NPV as high as the proposed standards. That same conclusion applies to the standards in today's rule. Also, several of the alternatives would require new enabling legislation, since authority to carry out those alternatives does not presently exist. Additional detail on the regulatory alternatives is found in the RIA report in the TSD.
The Regulatory Flexibility Act (5 U.S.C. 601
Small businesses, as defined by the Small Business Administration (SBA) for the distribution transformer manufacturing industry, are manufacturing enterprises with 750 employees or fewer. Prior to issuing the proposed rule in this rulemaking, DOE interviewed six small businesses affected by the rulemaking. DOE also obtained information about small business impacts while interviewing manufacturers that exceed the small business size threshold of 750 employees.
DOE reviewed the proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. 71 FR 44401. On the basis of this review, DOE determined that it could not certify that the proposed rule (TSL2), if promulgated, would have no significant economic impact on a substantial number of small entities.
Because of the potential impacts of the proposed standards on small manufacturers of medium-voltage, dry-type transformers, DOE prepared an IRFA during the NOPR stage of this rulemaking. DOE provided the IRFA in its entirety in the NOPR, 71 FR 44401-03, and also transmitted a copy to the Chief Counsel for Advocacy of the SBA for review. In addition, DOE gave a presentation concerning the key portions of the IRFA to the Chief Counsel for Advocacy of the SBA. DOE did not receive any indication that the IRFA was insufficient either in writing or during the aforementioned presentation to the SBA. Chapter 12 of the TSD contains more information about the impact of this rulemaking on manufacturers.
The IRFA divided potential impacts on small businesses into two broad categories: (1) Impacts associated with transformer design and manufacturing; and (2) impacts associated with demonstrating compliance with the standard using DOE's test procedure. DOE's test procedure rule does not require manufacturers to take any action in the absence of final energy conservation standards for distribution transformers, and thus any impact of that rule on small businesses would be triggered by the promulgation of today's standards. Thus, the IRFA discussed the potential impacts of the proposed standards on small manufacturers of medium-voltage, dry-type transformers, and of the compliance demonstration costs on all small manufacturers of distribution transformers.
DOE has prepared a FRFA for this rulemaking, and it is presented in the following discussion. DOE has transmitted a copy of this FRFA to the Chief Counsel for Advocacy of the SBA for review. The FRFA below is written in accordance with the requirements of the Regulatory Flexibility Act, and addresses the stakeholder comments received in response to the IRFA.
Today's rule is needed to satisfy the requirement in EPCA that DOE prescribe energy conservation standards for those distribution transformers for which DOE determines that standards would be technologically feasible and economically justified, and would result in significant energy savings. (42 U.S.C. 6317(a)) DOE had previously determined that standards for distribution transformers appear to be technologically feasible and economically justified, and are likely to result in significant savings. 62 FR 54809 (October 22, 1997).
In accordance with EPCA, the objective of today's final rule is to set energy conservation standards that achieve the maximum improvement in the energy efficiency of distribution transformers that are technologically feasible and economically justified. (See 42 U.S.C. 6295(o)(2)(A), 6313(a), and 42 U.S.C. 6317(a) and (c)) After DOE reviewed the comments received on the proposed rule and conducted further analyses, DOE determined that the economic benefits of today's standards exceed the costs to the greatest extent practicable, taking into consideration the seven factors set forth in 42 U.S.C. 6295(o)(2)(B)(i) (see Section II.A of this notice of final rulemaking). DOE concluded, therefore, that today's standards are economically justified. Further information concerning the background of this rulemaking is provided in Chapter 1 of the TSD.
By researching the distribution transformer market, developing a database of manufacturers, and conducting interviews with manufacturers (both large and small), DOE was able to estimate the number of small entities that would be regulated under an energy conservation standard. See chapter 12 of the TSD for further discussion about the methodology used in DOE's manufacturer impact analysis and its analysis of small business impacts.
Liquid-immersed transformers account for about $1.3 billion in annual sales and employment of about 4,230 production employees in the United States. DOE estimates that, of the approximately 25 U.S. manufacturers that make liquid-immersed distribution transformers, about 15 of them are small businesses. About five of the small businesses have fewer than 100 employees.
Medium-voltage, dry-type transformers account for about $84 million in annual sales and employment of about 250-330 production employees in the United States. The medium-voltage, dry-type market is relatively small compared to that of liquid-immersed transformers. The revenue attributable to the medium-voltage, dry-type transformers represents only about six percent of the total revenue of the industry affected by this rulemaking (i.e., the sum of revenues from the liquid-immersed and the medium-voltage, dry-type transformers). DOE estimates that, of the 25 U.S. manufacturers that make medium-voltage, dry-type distribution transformers, about 20 of them are small businesses. About ten of these small businesses have fewer than 100 employees. Thus, in relative terms, small businesses play a more dominant role in the market for medium-voltage, dry-type transformers than for liquid-immersed transformers.
Potential impacts on small businesses come from two broad categories of compliance requirements: (1) Impacts associated with transformer design and manufacturing, and (2) impacts associated with demonstrating compliance with the standard using the DOE test procedure.
With respect to impacts associated with transformer design and manufacturing, the margins and/or market share of small businesses in the medium-voltage, dry-type transformers could be hurt in the long term by today's promulgated level, TSL2. At TSL2, as opposed to TSL1, small manufacturers would have less flexibility in choosing a design path. However, as explained in part 6 of the IRFA, “Significant Alternatives to the Rule,” DOE explicitly considered the impacts on small manufacturers of medium-voltage, dry-type transformers in selecting TSL2, rather than selecting a higher trial standard level. 71 FR 44403. DOE expects that the differential impact on small manufacturers of medium-voltage, dry-type transformers (versus large businesses) would be smaller in moving from TSL1 to TSL2 than it would be in moving from TSL2 to TSL3.
With respect to compliance demonstration, DOE's test procedure for distribution transformers allows manufacturers to use an Alternative Efficiency Determination Method (AEDM) which would ease the burden on manufacturers. 10 CFR Part 431, Subpart K, Appendix A; 71 FR 24972. The AEDM involves a sampling procedure to compare manufactured products' efficiencies with those predicted by computer design software. Where the manufacturer uses an AEDM for a basic model, it would not be required to test units of the basic model to determine its efficiency for purposes of establishing compliance with DOE requirements. The professional skills necessary to execute the AEDM include the following: (1) Transformer design software expertise (or access to such expertise possessed by a third party); and (2) electrical testing expertise and moderate expertise with experimental statistics (or access to such expertise possessed by a third party). DOE's test procedure would require periodic verification of the AEDM.
DOE's test procedure also requires manufacturers to calibrate equipment used for testing the efficiency of transformers. Calibration records will need to be maintained as a result of today's standard.
The testing, reporting, and recordkeeping requirements associated with an energy conservation standard and its related test procedure would be identical, irrespective of the trial standard level chosen. Therefore, for both liquid-immersed and medium-voltage, dry-type transformers, the testing, reporting, and recordkeeping requirements have not entered into DOE's choice of trial standard level for today's final rule.
NEMA submitted a comment that supports DOE's assessment that TSLs higher than TSL2 would have serious impacts on small manufacturers of medium-voltage dry-type transformers and would lead to further industry consolidation. (NEMA, No. 156 at p. 1) NEMA also commented that TSL2 would disproportionately affect small manufacturers and greatly limit the range of ratings that they could produce. NEMA stated that small manufacturers do not have the investment capital to procure the equipment necessary to produce the most efficient designs, and that small manufacturers' current designs cannot meet TSL4 for many ratings (it was unclear in this specific comment whether NEMA was referring to medium-voltage dry-type transformers, liquid-immersed transformers, or both types). (NEMA, No. 125 at p. 2) NEMA also indicated that material availability and quota issues (for core steel, copper, and aluminum) impact small manufacturers more severely than large manufacturers, since small manufacturers have less leverage over suppliers and typically have less diverse businesses. (NEMA, No. 156 at pp. 2-3) HVOLT supported NEMA's view that small manufacturers are affected more than large manufacturers by material availability issues. (HVOLT, Inc., No. 144 at p. 2) HVOLT adds that the material availability problems that would arise at TSL2 or higher would drive small manufacturers out of business. (HVOLT, Inc., No. 155 at p. 3; Public Meeting Transcript, No. 108.6 at p. 138)
The PEMCO Corporation, a small manufacturer of medium-voltage dry-type transformers, submitted a comment that conflicts with NEMA and HVOLT and supports the information that DOE received during the manufacturer interview process prior to the IRFA and the NOPR. During the interviews, DOE learned that small manufacturers of medium-voltage dry-type transformers can still choose to produce their own cores at TSL2 (although some will purchase cores) and can profitably compete at TSL2. 71 FR 44403. In its comment in response to the IRFA, PEMCO stated that, with additional capital expenditures and major changes in manufacturing practices, it can meet TSL2. PEMCO further stated that levels above TSL2 would make it impossible for PEMCO to compete. (PEMCO Corporation, No. 130 at p. 1) The PEMCO comment is consistent with DOE's understanding of the potential impacts on small, medium-voltage dry-type manufacturers. DOE's MIA suggests that while TSL2 presents greater difficulties for small businesses than TSL1, the impacts at TSL3 would be much greater. DOE expects that small businesses will generally be able to profitably compete at TSL2. DOE's MIA is based on its interviews of both small and large manufacturers, and consideration of small business impacts explicitly enters into DOE's choice of TSL2 in promulgating minimum efficiency standards for medium-voltage dry-type transformers.
DOE also notes that today's promulgated standard of TSL2 can be met with a variety of materials, including multiple core steels and both copper and aluminum windings. Because TSL2 can be met with a variety of materials, DOE does not expect that material availability issues will represent a substantial problem in the long-term.
ACEEE submitted a comment stating that small, medium-voltage dry-type manufacturers would not be forced out of business at higher standard levels because they could either install the necessary mitering equipment or purchase finished cores. (ACEEE, No. 127 at p. 9) DOE recognizes both of these possibilities. While DOE agrees that standard levels higher than TSL2 would not necessarily cause all small businesses to exit, there is a risk that a significant number of small businesses would exit the market at TSL3 or higher. As reported in the IRFA, the thin steels required at TSL3 and higher (M3 or better) pose operational difficulties for the type of core-mitering equipment typically purchased by small manufacturers. In addition, small businesses would be at a relative disadvantage at TSL3 and higher because research and development efforts would be on the same scale as those for larger companies, but these expenses would be recouped over much smaller sales volumes. These research and development efforts would be required by all manufacturers (not just small manufacturers) at TSL3 and higher because these designs are demanded only in very low volumes today. 71 FR 44403.
As a separate matter, DOE also received comments pertaining to small manufacturers in the liquid-immersed distribution transformer industry (the IRFA did not pertain to liquid-immersed transformers). In the NOPR, DOE concluded that there will be no significant economic impact on a substantial number of small liquid-immersed manufacturers. DOE's conclusion in the proposed rule was based on DOE's understanding of the strategy followed by (and role played by) small liquid-immersed transformer manufacturers in the market. Since liquid-immersed distribution transformers are largely customized, small businesses can compete because many of these transformers are unique designs produced in relatively small quantities by a given customer's order. Small manufacturers of liquid-immersed transformers tend not to compete on the higher-volume products and often produce transformers for highly specific applications. This strategy allows small manufacturers of liquid-immersed units to be competitive in certain liquid-immersed product markets. In the NOPR, DOE stated that implementation of an energy conservation standard would have a relatively minor differential impact on small manufacturers of liquid-immersed distribution transformers. Disadvantages to small businesses, such as having little leverage over suppliers (e.g., core steel suppliers), are present with or without an energy conservation standard. Due to the purchasing characteristics of their customers, small manufacturers of liquid-immersed transformers currently produce transformers at TSL2, the proposed level. Thus, DOE expected that conversion costs (i.e., research and development costs and capital investments) and the associated manufacturer impacts on small businesses would be insignificant at the proposed level, TSL2. 71 FR 44401-44402. Below, DOE revisits this expectation in light of the standards promulgated today, which are higher than TSL2.
Cooper Power Systems stated that TSL1 would help U.S. manufacturers while TSL2 would greatly limit the range of designs that small manufacturers of liquid-immersed transformers could produce. Cooper also stated that TSL4 would eliminate small manufacturers. (Cooper Power Systems, No. 154 at p. 2)
NEMA commented that DOE underestimated the impacts on small manufacturers of liquid-immersed transformers because DOE failed to consider materials availability issues and the quotas typically placed on small manufacturers. NEMA pointed to quotas on both core steel and winding materials and also the need to outsource core production. (NEMA, No. 156 at pp. 1, 3) NEMA asserted that small manufacturers lack the sophistication to create the most efficient designs and that high efficiency requirements would lead to the outsourcing of core production (especially distributed gap wound cores). (NEMA, No. 156 at p. 3) HVOLT submitted similar comments,
Another manufacturer, Howard Industries notes that if size and weight increases are reasonable then most of the existing manufacturing equipment should still be usable (if fundamental technology changes are not required). (Howard Industries, No. 143 at p. 4) DOE infers that Howard's reference to “fundamental technology changes” concerns a requirement for amorphous core technology. The information provided by Howard is relevant to today's promulgated standard because TSLC will not require fundamental technology changes and therefore existing manufacturing facilities will not have to undergo substantial upgrades.
DOE appreciates the comments pertaining to the potential impacts on small liquid-immersed transformer manufacturers. DOE believes that its conclusion as stated in the IRFA is still valid, despite promulgating a standard today that is higher than the proposed level of TSL2 for all liquid-immersed design lines, except design line 4. The comments received on the August 2006 NOPR that were suggestive of prohibitive small business impacts that fall into two categories—those concerning materials availability and pricing and those pertaining to the outsourcing of distributed gap wound cores. In regard to the first category—materials availability and pricing—DOE recognizes that there are materials availability issues in the market today and that they are more serious for small businesses. DOE believes that such disadvantages for small businesses exist with or without an energy conservation standard. DOE does not expect that the standards promulgated today will exacerbate the problem. The standard promulgated today can be met through a variety of design paths including the use of more than one type of silicon core steel; in addition, the possibility of using multiple core steels may serve to alleviate material availability concerns in the long-term. With respect to the need of small manufacturers of liquid-immersed transformers to outsource distributed gap wound cores, evidence has not been presented by small businesses or their representatives to support the claim that this practice will be widespread. The equipment used in the liquid-immersed transformer industry to produce distributed gap wound cores is relatively inexpensive, and existing capacity is unlikely to become constrained because the equipment's processing time is proportional to the mass of steel processed (and does not increase significantly as thinner core steels are processed). In addition, unlike some core steel processing equipment presently used for stacked core construction, distributed gap wound core machines are readily able to handle steel laminations as thin as M2 without modification. See Section 12.4.1 of the TSD for further discussion.
HVOLT believes that TSL4 would hurt small manufacturers. To make this point, HVOLT and ERMCO pointed out at the public meeting that ERMCO cannot generate three-phase liquid-immersed designs which meet TSL4. HVOLT added that small businesses would have even greater difficulty than a sophisticated manufacturer such as ERMCO. (Public Meeting Transcript, No. 108.6 at p. 153 and pp. 163-164) ERMCO later submitted a comment which implied that TSL4 is a feasible standard level for all design lines except for design line 4. (ERMCO, No. 182 at p. 1) Since today's final rule requires design line 4 to meet the lower level in the proposed rule (TSL2), DOE believes that HVOLT's concern expressed at the public meeting about the feasibility of TSL4 and its implications for small businesses have been addressed. Today's standard is below TSL4 for the three-phase designs, and in particular, regulates design line 4 to the proposed level of TSL2.
In consideration of the benefits and burdens of standards, including the burdens posed to small manufacturers, DOE concluded TSL2 is the highest level that can be justified for medium-voltage, dry-type transformers. As explained in part 6 of the IRFA, “Significant Alternatives to the Rule,” DOE explicitly considered the impacts on small manufacturers of medium-voltage, dry-type transformers in selecting TSL2, rather than selecting a higher trial standard level. It is DOE's belief that levels at TSL3 or higher would place excessive burdens on small manufacturers of medium-voltage, dry-type transformers. Such burdens would include large product redesign costs and also operational problems associated with the extremely thin laminations of core steel that would be needed to meet these levels. TSL2 essentially eliminates butt-lap core designs and will therefore put more burden on small manufacturers than would TSL1. However, the differential impact on small businesses (versus large businesses) is expected to be lower in moving from TSL1 to TSL2 than in moving from TSL2 to TSL3. Today, the market already demands significant quantities of medium-voltage, dry-type transformers that meet TSL2. 71 FR 44403.
Section VI.D above discusses how small business impacts entered into DOE's selection of today's standards for medium-voltage, dry-type transformers. DOE made its decision regarding standards by beginning with the highest level considered (TSL6) and successively eliminating TSLs until it finds a TSL that is both technologically feasible and economically justified (TSL2 in this case), taking into account other EPCA criteria. Because DOE believes that TSL2 is economically justified (including consideration of small business impacts), the reduced impact on small businesses that would have been realized in moving down to TSL1 was not considered in DOE's decision (but the reduced impact on small businesses that is realized in moving down to TSL2 from TSL3 was explicitly considered in the weighing of benefits and burdens).
Finally, DOE notes that it received no comments in reference to any undue burden placed on small manufacturers by the DOE test procedure and associated compliance requirements. In the IRFA, DOE requested feedback concerning the need to abbreviate test procedure requirements. 71 FR 44403. DOE received no comments on this issue from small businesses and is therefore not considering abbreviated test procedure requirements for small businesses at this time. DOE notes that the AEDM feature of the test procedure reduces the testing burden significantly for all manufacturers. Where manufacturers use an AEDM for a basic model, they would not be required to test units of the basic model to determine its efficiency for purposes of establishing compliance with DOE requirements. 71 FR 24990 and 24997-24998.
Adoption of today's final rule will have the effect of requiring that manufacturers follow DOE's test procedure for distribution transformers, not just for purposes of making representations, but also to determine compliance even in the absence of any representation. Thus, manufacturers will become subject to the record-keeping requirements contained in the test procedure when today's energy conservation standards for distribution
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 information collection requirements in section 431.197(a)(4)(i) and section 6.2 of Appendix A will not become effective until OMB approves them. The Department will publish a document in the
DOE prepared an environmental assessment of the impacts of today's standards (DOE/EA-1565), which is available from: U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal building, Mail Station EE-41, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-0854. DOE found the environmental effects associated with various standard efficiency levels for distribution transformers to be not significant, and therefore it is publishing, elsewhere in this issue of the
DOE reviewed this rule pursuant to Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to 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. The Department has examined today's final rule and has determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that is the subject of today's final rule. States can petition the Department for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) 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 Executive 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 Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
DOE reviewed this regulatory action under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) (UMRA), which requires each Federal agency to assess the effects of Federal regulatory actions on State, local and Tribal governments and the private sector. Today's final rule may impose expenditures of $100 million or more on the private sector. It does not contain a Federal intergovernmental mandate.
Section 202 of UMRA authorizes an agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. 2 U.S.C. 1532(c). The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and
DOE determined that, for this rulemaking, it need not prepare a Family Policymaking Assessment under section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277). 71 FR 44405. DOE received no comments concerning section 654 in response to the NOPR, and, therefore, is taking no further action in today's final rule with respect to this provision.
DOE determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that today's rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution. 71 FR 44405. DOE received no comments concerning Executive Order 12630 in response to the NOPR, and, therefore, is taking no further action in today's final rule with respect to this Executive Order.
Section 515 of 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 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). DOE has reviewed today's final rule 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 of the OMB a Statement of Energy Effects for any significant energy action. DOE determined that the proposed rule was not a “significant energy action” within the meaning of Executive Order 13211. 71 FR 44405. Accordingly, it did not prepare a Statement of Energy Effects on the proposed rule. DOE received no comments on this issue in response to the NOPR. As with the proposed rule, DOE has concluded that today's final rule is not a significant energy action within the meaning of Executive Order 13211, and has not prepared a Statement of Energy Effects on the rule.
Section 32 of the Federal Energy Administration Act (FEAA) of 1974 precludes DOE from adopting by rule any commercial standard unless the agency has consulted with the Attorney General and the Chairman of the Federal Trade Commission, and neither recommends against such requirement. (15 U.S.C. 788) DOE indicated in the proposed rule, in a slightly different context, that it was not proposing in this rulemaking to require use of a commercial standard, and it concluded that section 32 of the FEAA did not apply. DOE received no comments on this issue. As with the proposed rule, today's rule neither incorporates nor requires compliance with a voluntary commercial standard. Therefore, section 32 of the FEAA does not apply to this rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology (OSTP), issued its “Final Information Quality Bulletin for Peer Review” (Bulletin). 70 FR 2664 (January 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the federal government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemakings analyses are “influential scientific information.” The Bulletin defines “influential scientific information” as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2667 (January 14, 2005).
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site:
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is a “major rule” as defined by 5 U.S.C. 804(2). DOE also will submit the supporting analyses to the Comptroller General in the U.S. Government Accountability Office (GAO) and make them available to each House of Congress.
The Secretary of Energy has approved publication of today's final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
42 U.S.C. 6291-6317.
(a)
(b)
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Dear Deputy General Counsel Belmar: I am responding to your November 14, 2006 letters seeking the views of the Attorney General about the potential impact on competition of proposed energy efficiency standards relating to (1) liquid-immersed and medium-voltage, dry-type distribution transformers (“distribution transformers”), and (2) residential furnaces and boilers (“furnaces and boilers”). The Energy Policy and Conservation Act (“EPCA”) authorizes the Department of Energy (“DOE”) to establish energy conservation standards for a number of appliances where DOE determines that those standards would be technologically feasible, economically justified, and result in significant energy savings.
Your requests were submitted pursuant to Section 325(o)(2)(B)(I) of the Energy Policy and Conservation Act, 42 U.S.C. 6291. 6295 (“EPCA”), which states that, before the Secretary of Energy may prescribe a new or amended energy conservation standard, the Secretary shall ask the Attorney General to make a determination of “the impact of any lessening of competition * * * that is likely to result from the imposition of the standard.” The Attorney General's responsibility for responding to requests from other departments about the effect of a program on competition has been delegated to the Assistant Attorney General for the Antitrust Division in 28 CFR 0.40(g). In conducting its analysis the Antitrust Division examines whether a standard may lessen competition, for example, by placing certain manufacturers of a product at an unjustified competitive disadvantage compared to other manufacturers, or by inducing avoidable inefficiencies in production or distribution of particular products. In addition to harming consumers directly through higher prices, these effects could undercut the ultimate goals of the legislation.
Your requests included the Notices of Proposed Rulemaking (“NOPR”) that were published in the
In addition to the NOPRs and transcripts, your staff provided us comments that had been submitted to DOE regarding the proposed standards. (We understand that the docket has not closed with respect to furnaces and that more comments may be forthcoming.) We have reviewed these materials and additionally conducted interviews with members of the industries.
Based on this inquiry, the Division is concerned that the distribution transformer Trial Standard Level 2 may adversely affect competition with respect to distribution transformers used in industries, such as underground coal mining, where physical conditions limit the size of equipment that can be effectively utilized. We understand manufacturers would not be able to satisfy the proposed standard without increasing the size (or decreasing the power) of each class of distribution transformer. Firms facing space constraints would incur significantly increased costs due to enlarging the required installation space (which, for example, could involve removal of solid rock around coal seams in underground mines) or reconfiguring the size and number of each class of distribution transformers at each site. The resulting cost increases could constitute production inefficiencies that could make certain products less competitive. For example, the rule could, by raising the costs of certain coal mines, adversely affect production decisions at those mines and potentially result in increased use of less efficient energy alternatives. We urge the DOE to consider these concerns carefully in its analysis, and to consider creating an exception for distribution transformers used in industries with space constraints.
The Division is also concerned that the standards for weatherized gas furnaces and gas boilers could adversely affect competition. We understand that manufacturers would have difficulty designing products that safely meet the proposed standards. For weatherized gas furnaces, meeting the standard would like result in increased condensation, potentially resulting in significant deterioration that would jeopardize the safety of the product, and, for weatherized gas-fired water boilers, meeting the standard would make effective carbon dioxide venting more difficult. Any resulting costs incurred to solve these issues could adversely affect the competitiveness of these products in relation to electric heat pumps and water heaters. We urge the DOE to carefully consider its proposed standards in light of these concerns.
Aside from the discussion above, the Division does not otherwise believe the proposed standards would adversely impact competition.
Dear Deputy General Counsel Belmar: I am responding to your August 7, 2007 letter seeking the views of the Attorney General about the potential impact on competition of the proposed final rule regarding energy
Your request was submitted pursuant to Section 325(o)(2)(B)(I) of the Energy Policy and Conservation Act, 42 U.S.C. 6291.6295 (“EPCA”), which states that before the Secretary of Energy may prescribe a new or amended energy conservation standard, the Secretary shall ask the Attorney General to make a determination of “the impact of any lessening of competition * * * that is likely to result from the imposition of the standard.” The Attorney General's responsibility for responding to requests from other departments about the effect of a program on competition has been delegated to the Assistant Attorney General for the Antitrust Division in 28 CFR 0.40(g). In conducting its analysis the Antitrust Division examines whether a standard may lessen competition, for example, by placing certain manufacturers of a product at an unjustified competitive disadvantage compared to other manufacturers, or by inducing avoidable inefficiencies in production or distribution of particular products. In addition to harming consumers directly through higher prices, these effects could undercut the ultimate goals of the legislation.
Along with your request, you sent us the draft final rule and a number of other documents relating to distribution transformers, including the comments that had been submitted to DOE in response to the Notice of Proposed Rulemaking (“NOPR”), the Notice of Data Availability (“NODA”) issued by DOE earlier this year that discussed standards DOE was considering, and comments DOE received regarding the NODA.
In November of 2006, you requested DOJ's views regarding the NOPR, which proposed Trial Standard Level 2. By letter dated January 16, 2007, we responded that, based on our inquiry, we were concerned that the distribution transformer standard might adversely affect competition with respect to distribution transformers used in industries, such as underground coal mining, where physical conditions limit the size of equipment that can be effectively utilized. We urged DOE to consider creating an exception for distribution transformers used in industries with space constraints.
You have addressed our concern by establishing a separate product class for underground mining transformers and excluding that class from the proposed final rule. Although our January 16, 2007 letter did not limit our concern to underground mining transformers, we believe DOE's decision to exclude underground mining transformers from the proposed final rule adequately addresses our concern.
Our review of the NOPR was limited to the impact of Trial Standard Level 2 on competition. The proposed final rule would establish a more stringent standard than Trial Standard Level 2 for certain distribution transformers. Specifically, it establishes Trial Standard Level 3 as the standard for certain three phase liquid-immersed distribution transformers, with a commensurate standard for certain single phase liquid-immersed distribution transformers. To ascertain whether the more stringent standard would adversely impact competition, we have evaluated the comments DOE received in response to the NODA, which had stated DOE was contemplating Trial Standard Level 2 or 3 for three phase liquid-immersed distribution transformers. We have also conducted industry interviews. Based on this review, we have concluded that the proposed final rule's application of Trial Standard Level 3 to certain three phase liquid-filled distribution transformers and the comparable standard to certain single phase liquid-filled distribution transformers would not adversely affect competition.
In conclusion, the Antitrust Division does not believe the proposed final rule would adversely affect competition.