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Presidential Documents
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Fiscal Service
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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Merit Systems Protection Board.
Final rule.
The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to clarify a number of matters: That the date of receipt of an agency decision is date on which the petitioner receives it; that a witness who is not a federal employee may obtain an order requiring the payment of witness fees; that the time for filing a petition for review begins on the date the initial decision is first received by either the appellant or the representative; and that complaints of discrimination must be clearly marked as raising such an issue. The Board also amends its mixed case procedures to make clear that any case older than 120 days is subject to the 30 day filing requirement once the appellant receives the agency's final decision. The Board also deletes an outdated reference to Appendix 1.
William D. Spencer, Clerk of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail:
The Board is amending its rules of practice and procedure in 5 CFR part 1201 and 5 CFR Part 1207 as follows:
Section 1201.22(b)(1) is amended to make clear that the date of receipt of the agency's decision is the date on which the petitioner receives the decision;
Section 1201.37(d) and (e) and 1201.182(c) are amended to state that a witness who is not a federal employee may obtain an order requiring the payment of witness fees and may file a petition for enforcement of such an order.
Section 1201.114(d) is amended to make clear that the time for filing a petition for review begins to run from the date of receipt of the initial decision by either the appellant or the representative, whichever comes first. The rule is consistent with that followed by the Federal Circuit with respect to petitions for judicial review.
1201.154(a) & (d) are amended to make clear that the date of receipt of the agency's decision is the date on which the petitioner receives the decision;
1201.154(b)(2) is amended to make clear that an agency case older than 120 days is subject to the 30 day filing requirement once the appellant receives the agency's final decision. This amendment addresses an issue that arose in
1207.170(b)(2) & (4) are amended to ensure that MSPB administrative judges and the Board are aware that a party is raising a complaint of discrimination in the adjudication of a Board case.
Administrative practice and procedure, Government employees.
Administrative practice and procedure, Government employees.
5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.
(b) * * *
(1) Except as provided in paragraph (b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days—for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board's acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part.
(d) A witness who is denied the witness fees and travel costs required by paragraphs (b) and (c) of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs (b) and (c) of this section.
(e) An order obtained under paragraph (d) of this section may be enforced as provided under subpart F of this part.
(d) Time for filing. Any petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition for review or to a cross petition for review must be filed within 25 days after the
(a) Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency's decision on the appealable action, whichever is later.
(b) * * *
(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.
(d) This paragraph does not apply to employees of the Postal Service or to other employees excluded from the coverage of the federal labor-management relations laws at chapter 71 of title 5, United States Code. If the appellant has filed a grievance with the agency under a negotiated grievance procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator. A full description of an individual's right to pursue a grievance and to request Board review of a final decision on the grievance is found at 5 U.S.C. 7121 and 7702. The appellant's request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419. The request for review must contain:
(1) A statement of the grounds on which review is requested;
(2) References to evidence of record or rulings related to the issues before the Board;
(3) Arguments in support of the stated grounds that refer specifically to relevant documents, and that include relevant citations of authority; and
(4) Legible copies of the final grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or tape recording of the hearing.
(c) * * *
(3) Under § 1201.37(e) of this part, a nonparty witness who has obtained an order requiring the payment of witness fees and travel costs may petition the Board for enforcement of the order.
(5) A petition for enforcement under paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party's representative. If the petition is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the petition.
29 U.S.C. 794.
(b) * * *
(2) An allegation of discrimination in the adjudication of a Board case must be raised within 10 days of the alleged act of discrimination or within 10 days from the date the complainant should reasonably have known of the alleged discrimination. If the complainant does not submit a complaint within that time period, it will be dismissed as untimely filed unless a good reason for the delay is shown. The pleading must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.”
(4) If the judge to whom the case was assigned has issued the initial decision, recommended decision, or recommendation by the time the party learns of the alleged discrimination, the party may raise the allegation in a petition for review, cross petition for review, or response to the petition or cross petition. The petition for review, cross petition for review or response to the petition or cross petition must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.”
Agricultural Marketing Service (AMS), USDA.
Final rule.
This final rule amends Marketing Order No. 915 (order), which regulates the handling of avocados grown in South Florida. The amendments are based on those proposed by the Florida Avocado Administrative Committee (committee), which is responsible for local administration of the order. The amendments will: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions. All of the proposals were favored by avocado growers in a mail referendum, held July 23 through August 6, 2007. The amendments are intended to improve the operation and functioning of the marketing order program.
This rule is effective February 7, 2008.
Marc McFetridge or Melissa
Small businesses may request information on this proceeding 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, E-mail:
Prior documents in this proceeding: Notice of Hearing issued on July 18, 2006, and published in the July 24, 2006 issue of the
This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.
This final rule was formulated on the record of a public hearing held in Homestead, Florida on August 16, 2006. Notice of this hearing was issued on July 18, 2006, and published in the July 24, 2006 issue of the
The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and marketing orders (7 CFR part 900).
The Notice of Hearing contained four proposals submitted by the Avocado Administrative Committee (committee), which is responsible for local administration of the order.
Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on March 23, 2007, filed with the Hearing Clerk, U.S. Department of Agriculture, a Recommended Decision and Opportunity to File Written Exceptions thereto by April 30, 2007. None were filed.
That document also announced AMS's intent to request approval of new information collection requirements to implement the program. Written exceptions on the proposed information collection requirements were due by May 29, 2007. None were filed.
A Secretary's Decision and Referendum Order was issued on July 9, 2007, directing that a referendum be conducted during the period of July 23, 2007 to August 6, 2007, among growers of avocados in South Florida to determine whether they favored the proposed amendments to the order. To become effective, the amendments had to be approved by at least two-thirds of those growers voting, or by voters representing at least two-thirds of the volume of avocados represented by voters voting in the referendum. Voters voting in the referendum favored all of the proposed amendments.
The amendments favored by voters and included in this order will: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions.
USDA also made such changes as were necessary to the order so that all of the order's provisions conform to the effectuated amendments.
The amended marketing agreement was subsequently mailed to all avocado handlers in the production area for their approval. The marketing agreement was not approved by handlers representing more than 50 percent of the volume of avocados handled by all handlers during the representative period of April 1, 2006, through March 31, 2007.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action 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 so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.
Small agricultural growers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms, which include handlers regulated under the order, are defined as those with annual receipts of less than $6,500,000.
The record indicates that there are an estimated 352 growers of avocados in the production area and 32 handlers subject to regulation under the order.
According to the National Agricultural Statistics Service (NASS) and committee data, the average price for Florida avocados during the 2005-06 season was around $46.75 per 55-pound bushel container, and total shipments were near 470,000 55-pound bushel equivalent. Using this average price and shipment information, the majority of avocado handlers could be considered small businesses under the SBA definition. In addition, based on avocado production, grower prices, and the total number of Florida avocado growers, the average annual grower revenue is less than $750,000. Thus, the majority of Florida avocado growers may also be classified as small entities.
The NASS reported that in 2005, total Florida avocado bearing acres were 5,300 and the average yield per acre was 2.26 tons. The total Florida production reported in 2005 was 12,000 tons, with growers receiving an average (farm gate) price of $940/ton. The estimated total value of 2005 Florida avocado production was $11.28 million.
Over the past 30 years, the U.S. avocado industry has seen many changes. According to NASS, the total U.S. production acres for avocados have decreased by 13 percent, from 78,000 acres in 1982 to 67,600 acres in 2005. Prices have trended upward from 1959 to 2005, although there has been significant variability in prices from year to year. The average grower price for the U.S. in 1959 was $109 per ton and in 2005 the average grower price was $1,280 per ton. The total value of U.S. avocado production has increased dramatically since 1959, reaching a peak of $394 million in 2003. The per capital consumption of fresh avocados has risen significantly since 1970. Between 1970 and 2004, per capital consumption increased almost five-fold to 2.9 pounds per person in 2004. According to the hearing record, one of the factors that may be contributing to this increase is the new year-round availability of avocados due to the volume of imported avocados in addition to domestically produced avocados.
Comparatively, Florida's avocado industry has seen similar trends.
This action amends the order to: Add authority for the committee to borrow funds; revise voting requirements for changing the assessment rate; allow for District 1 nominations to be conducted by mail; and, add authority for the committee to accept voluntary contributions.
These amendments will streamline program organization, but are not expected to result in a significant change in industry production, handling or distribution activities. In discussing the impacts of the amendments on growers and handlers, record evidence indicates that the changes are expected to be positive because the administration of the programs would be more efficient, and therefore more effective, in executing committee duties and responsibilities. There would be no significant cost impact on either small or large growers or handlers.
Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small entities. The record evidence shows that the amendments are designed to increase efficiency in the functioning of the order.
USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are designed to enhance the administration and functioning of the order to the benefit of the Florida avocado industry.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection continued in this action was submitted to the Office of Management and Budget (OMB) and has been approved under OMB No. 0581-0243, Avocados Grown in South Florida. The burden and associated forms in this collection were also included in the renewal submission of OMB No. 0581-0189, Generic OMB Fruit Crops, currently at OMB for review. Upon approval of OMB No. 0581-0189, a discontinuation notice will be submitted to OMB to retire OMB No. 0581-0243.
The amendment authorizing mail nominations for District 1 requires a nomination form and ballot to conduct mail nominations. It is estimated that there are 384 growers and handlers who will be entitled to vote by mail ballot once every two years. The estimated burden to each grower and handler is 0.083 hour per response.
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.
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.
The amendments to Marketing Order No. 915 proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.
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. A 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 Sates 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 no later than 20 days after the date of the entry of the ruling.
The findings and determinations hereinafter set forth are supplementary and in addition to the findings and determinations previously made in connection with the issuance of the order; and all of said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.
(a)
Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon the proposed amendments to the Marketing Order No. 915 (7 CFR part 915), regulating the handling of avocados grown in Florida.
Upon the basis of the evidence introduced at such hearing and the record thereof, it is found that:
(1) The marketing order, as amended, and as hereby further amended, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the Act;
(2) The marketing order, as amended, and as hereby further amended, regulates the handling of avocados grown in the production area in the same manner as, and is applicable only to persons in the respective classes of commercial and industrial activity specified in the marketing order upon which hearings have been held;
(3) The marketing order, as amended, and as hereby further amended, is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivision of the production area would not effectively carry out the declared policy of the Act;
(4) The marketing order, as amended, and as hereby further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of avocados grown in the production area; and,
(5) All handling of avocados grown in the production area is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.
(b)
It is necessary and in the public interest to make these amendments to the order effective not later than one day after publication in the
In view of the foregoing, it is hereby found and determined that good cause exists for making these amendments effective one day after publication in the
(c)
(1) Handlers (excluding cooperative associations of growers who are not engaged in processing, distributing, or shipping avocados covered by the order as hereby amended) who, during the period April 1, 2006, through March 31, 2007, handled 50 percent or more of the volume of such avocados covered by said order, as hereby amended, have not signed an amended marketing agreement;
(2) The issuance of this amendatory order, further amending the aforesaid order, is favored or approved by at least two-thirds of the growers who participated in a referendum on the question of approval and who, during the period of April 1, 2006, through March 31, 2007 (which has been deemed to be a representative period), have been engaged within the production area in the production of such avocados, such growers having also produced for market at least two-thirds of the volume of such commodity represented in the referendum; and
(3) In the absence of a signed marketing agreement, the issuance of this amendatory order is the only practical means pursuant to the declared policy of the Act of advancing the interests of growers of avocados in the production area.
The provisions of the proposed marketing agreement and order further amending the order contained in the Secretary's Decision issued by the Administrator on July 9, 2007, and published in the
Avocados, Marketing agreements, Reporting and recordkeeping requirements.
7 U.S.C. 601-674.
(a)
(b)
(b)
(c) For any recommendation of the committee for an assessment rate change, a quorum of seven committee members and a two-thirds majority vote of approval of those in attendance is required.
(b) The Secretary shall fix the rate of assessment per 55-pounds of fruit or equivalent in any container or in bulk, to be paid by each such handler. At any time during or after a fiscal year, the Secretary may increase the rate of assessment, in order to secure sufficient funds to cover any later finding by the Secretary relative to the expense which may be incurred. Such increase shall be applied to all fruit handled during the applicable fiscal year. In order to provide funds for the administration of the provisions of this part, the committee may accept the payment of assessments in advance, or borrow money on an emergency short-term basis. The authority of the committee to borrow money is subject to approval of the Secretary and may be used only to meet financial obligations as the obligations occur or to allow the committee to adjust its reserve funds to meet such obligations.
The committee may accept voluntary contributions. Such contributions shall be free from any encumbrances by the donor and the committee shall retain complete control of their use.
The committee may, with the approval of the Secretary, establish or provide for the establishment of production research, marketing research and development projects designed to assist, improve or promote the marketing, distribution, and consumption or efficient production of avocados. Such products may provide for any form of marketing promotion, including paid advertising. The expenses of such projects shall be paid from funds collected pursuant to the applicable provisions of § 915.41, or from such other funds as approved by the USDA.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is revising an existing airworthiness directive (AD) for Rolls-Royce plc (RR) RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines with high pressure compressor (HPC) stage 3 disc assemblies, part numbers (P/Ns) LK46210, LK58278, LK67634, LK76036, UL11706, UL15358, UL22577, UL22578, and UL24738 installed. That AD currently requires removing from service certain disc assemblies before they reach their full published life if not modified with anticorrosion protection. This AD requires the same actions but relaxes the removal compliance time for certain disc assemblies that have a record of detailed inspection. This AD results from the FAA allowing certain affected disc assemblies that have a record of a detailed inspection, to remain in service for a longer period than the previous AD allowed. We are issuing this AD to relax the compliance time for disc assemblies manufactured both “before and after 1990” by providing an option to track the disc life based on a record of a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane.
Effective February 21, 2008. The Director of the Federal Register previously approved the incorporation by reference of certain publications listed in the regulations as of February 24, 2004 (69 FR 2661, January 20, 2004).
We must receive any comments on this AD by April 7, 2008.
Use one of the following addresses to comment on this AD.
•
•
•
•
Contact Rolls-Royce plc, PO Box 31, Derby, England, DE248BJ; telephone: 011-44-1332-242424; fax: 011-44-1332-245-418, for the service information identified in this AD.
Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail:
On May 15, 2006, the FAA issued AD 2006-11-05, Amendment 39-14609 (71 FR 29586, May 23, 2006). We also issued a correction to that AD on September 26, 2006 (71 FR 58254, October 3, 2006) and a revision to that AD on April 9, 2007 (72 FR 18862, April 16, 2007). That AD revision requires removing from service certain disc assemblies before they reach their full published life if not modified with anticorrosion protection. That AD was the result of the manufacturer's reassessment of the corrosion risk on HPC stage 3 disc assemblies that have not yet been modified with sufficient application of anticorrosion protection. That condition, if not corrected, could result in corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane.
Since AD 2006-11-05R1 was issued, we discovered that the population of affected disc assemblies identified in that AD was incorrect. That AD allowed affected disc assemblies that entered into service “before 1990” that have a record of a detailed inspection, to remain in service for a longer period than the previous AD, AD 2006-11-05, allowed. This revised AD allows disc assemblies manufactured both “before and after 1990” that have a record of a detailed inspection, to remain in service for 17 years from last overhaul inspection date. But the discs are not to exceed the manufacturer's published cyclic limit in the time limits section of the manual. We are issuing this AD to relax the compliance time for certain disc assemblies by providing an option to track the disk life based on a record of a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane.
We have reviewed and approved the technical contents of RR MSB No. RB.211-72-9661, Revision 5, dated December 22, 2006. That MSB allows affected disc assemblies and that have a record of detailed inspection:
• To remain in service for 17 years from last overhaul inspection date; but
• Not to exceed the manufacturer's published cyclic limit in the time limits section of the manual.
This engine model is manufactured in the United Kingdom (UK), and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the Civil Aviation Authority (CAA), which is the airworthiness authority for the UK, has kept the FAA informed of the situation described above. We have examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
The unsafe condition described previously is likely to exist or develop on other RR RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines of the same type design. We are issuing this AD to relax the compliance time for certain disc assemblies by providing an option to track the disk life based on a record of a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to the airplane. This AD requires the following for affected HPC stage 3 rotor disc assemblies:
• Removing affected disc assemblies from service; and
• Re-machining, inspecting, and applying anticorrosion protection; and
• Re-marking, and returning disc assemblies into service; and
• Allowing affected disc assemblies that have a record of a detailed inspection, to remain in service for 17 years from last overhaul inspection date but not to exceed the manufacturer's published cyclic limit in the time limits section of the manual.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable. Good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more 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 the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective February 21, 2008.
(b) This AD revises AD 2006-11-05R1, Amendment 39-15026.
(c) This AD applies to Rolls-Royce plc (RR) RB211-22B series, RB211-524B, -524C2, -524D4, -524G2, -524G3, and -524H series, and RB211-535C and -535E series turbofan engines with high pressure compressor (HPC) stage 3 disc assemblies, part numbers (P/Ns) LK46210, LK58278, LK67634, LK76036, UL11706, UL15358, UL22577, UL22578, and UL24738 installed. These engines are installed on, but not limited to, Boeing 747, Boeing 757, Boeing 767, Lockheed L-1011, and Tupolev Tu204 series airplanes.
(d) This AD results from the FAA allowing certain affected disc assemblies that have a record of a detailed inspection, to remain in service for a longer period than the previous AD allowed. We are issuing this AD to relax the compliance time for disc assemblies manufactured both “ before and after 1990” by providing an option to track the disc life based on a record of a detailed inspection rather than by its entry into service date, while continuing to prevent corrosion-induced uncontained disc assembly failure, resulting in damage to 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) Remove from service affected HPC stage 3 disc assemblies identified in the following Table 1, using one of the following criteria:
(1) For disc assemblies that entered into service before 1990, remove disc assembly and rework as specified in paragraph (g)(2) of this AD, on or before January 4, 2007, but not to exceed the upper cyclic limit in Table 1 of this AD before rework. Disc assemblies reworked may not exceed the manufacturer's published cyclic limit in the time limits section of the manual.
(2) For disc assemblies that entered into service in 1990 or later, remove disc assembly within the cyclic life rework bands in Table 1 of this AD, or within 17 years after the date of the disc assembly entering into service, whichever is sooner, but not to exceed the upper cyclic limit of Table 1 of this AD before rework. Disc assemblies reworked may not exceed the manufacturer's published cyclic limit in the time limits section of the manual.
(3) For disc assemblies that when new, were modified with an application of anticorrosion protection and re-marked to P/N LK76036 (not previously machined) as specified by part 1 of the original issue of RR SB No. RB.211-72-5420, dated April 20, 1979, remove RB211-22B series disc assemblies before accumulating 10,000 cycles-in-service (CIS), and remove RB211-524 series disc assemblies before accumulating 9,000 CIS.
(4) If the disc assembly date of entry into service cannot be determined, the date of disc assembly manufacture may be obtained from RR and used instead.
(5) Disc assemblies in RB211-535C series operation are unaffected by the interim rework cyclic band limits in Table 1 of this AD, but must meet the calendar life requirements of either paragraph (f)(1) or (f)(2) of this AD, as applicable.
(g) Rework HPC stage 3 disc assemblies that were removed in paragraph (f) of this AD as follows:
(1) For disc assemblies that when new, were modified with an application of anticorrosion protection and re-marked to P/N LK76036 (not previously machined) as specified by Part 1 of the original issue of RR SB RB.211-72-5420, dated April 20, 1979, rework disc assemblies and re-mark to either P/N LK76034 or P/N LK78814 using paragraph 2.B. of the Accomplishment Instructions of RR SB No. RB.211-72-5420, Revision 4, dated February 29, 1980. This rework constitutes terminating action to the removal requirements in paragraph (f) of this AD.
(2) For all other disc assemblies, rework using Paragraph 3.B. of the Accomplishment Instructions of RR SB No. RB.211-72-9434, Revision 4, dated January 12, 2000. This rework constitutes terminating action to the removal requirements in paragraph (f) of this AD.
(3) If rework is done on disc assemblies that are removed before the disc assembly reaches the lower life of the cyclic life rework band in Table 1 of this AD, artificial aging of the disc assembly to the lower life of the rework band, at time of rework, is required.
(4) Disc assemblies that have a record of detailed inspection, regardless of the date of entry into service, are allowed to remain in service for 17 years from last overhaul inspection date but not to exceed the manufacturer's published cyclic limit in the time limits section of the manual.
(h) The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(i) Civil Aviation Authority AD 004-01-94, dated January 4, 2002, and RR Mandatory Service Bulletin No. RB.211-72-9661, Revision 5, dated December 22, 2006, pertain to the subject of this AD.
(j) You must use Rolls-Royce plc Service Bulletin No. RB.211-72-5420, Revision 4, dated February 29, 1980, and Rolls-Royce plc Service Bulletin No. RB.211-72-9434, Revision 4, dated January 12, 2000, to perform the rework required by this AD. The Director of the Federal Register previously approved the incorporation by reference of these service bulletins in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, as of February 24, 2004 (69 FR 2661, January 20, 2004). You can get copies from Rolls-Royce plc, PO Box 31, Derby, England, DE248BJ; telephone: 011-44-1332-242424; fax: 011-44-1332-245-418. You can review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; 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:
(k) Contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes in the National Airspace System, such as the commissioning of new navigational facilities, adding of new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 6, 2008. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 6, 2008.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore-(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; 97.29 ILS, ILS/DME,ISMLS, MLS/DME, MSL/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Consumer Product Safety Commission.
Correcting amendment.
The Consumer Product Safety Commission (“Commission”) is making corrections to the flammability standard for mattress sets that was published in the
The corrections become effective on February 6, 2008.
Heather Sonabend, Office of Compliance, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7615; e-mail
On March 15, 2006, the Commission issued a final rule specifying a flammability standard to reduce deaths and injuries related to mattress fires. The standard contains requirements for a test procedure, recordkeeping and labeling. Other than the correction that allows translation of the certification statement, the corrections occur in section 1633.7, the provisions describing the technical details of running the flammability test. The changes are described below.
In § 1633.7(a)(4), the term “bed frame” is changed to “test frame” to clarify that this refers to the frame used in the test, not a regular bed frame. This change is made in other paragraphs as well. Language also is added to this section to clarify that the angle iron should be positioned to angle down rather than up.
In § 1633.7(a)(6), a new paragraph (v) is created to clarify that the second half of existing paragraph (iv) relates to the burner inlet line. The remaining subparagraphs are redesignated. A technical error in footnote 1 is corrected to provide the correct measurements for the plastic tubing attaching the metal arms to the gas control. In the paragraph on the flow control system, there was a technical error in the propane pressure value. 70 kPa should be 140 kPa, and 140kPa (20 psig) should be 140 ± 5 kPa (20 ± 1 psig). These measurements and an erroneous reference to a figure 8 are corrected.
In § 1633.7(b)(1)(ii) the range used for the propane tank is corrected from 20 ± .5 psig to 20 ± 1 psig.
In § 1633.7(d) concerning test preparation a typographical error is corrected to state that the horizontal air flow velocity adjacent to the test specimen shall be no more than 0.5 m/s. A few sentences in subparagraph (2) are changed to clarify placement of the mattress and foundation specimen on the test frame.
In § 1633.7(e) a reference is corrected to correspond to the appropriate redesignated paragraph in § 1633.7(a)(6).
In § 1633.7(f) the sentence concerning the general layout for the room configuration is moved to the beginning of the paragraph to make the paragraph easier to follow.
In § 1633.7(h) an erroneous reference to figure 8 in subparagraph (1)(iv) is removed. Language is also added in that subparagraph to permit use of a platen that is another dimension than specified if it meets the requirements for a specific sample. In subparagraph (2)(i) rather than specifying an 8 inch length of duct tape to hold the platen in position, the language is changed to clarify that the duct tape be of sufficient length to assure that the platen stays firmly against the mattress surfaces. In subparagraph (2)(iv) language is added to clarify the use of flat stock to assure that the burner is parallel to the mattress surface. In subparagraph (2)(viii) the change clarifies that the stand off foot referred to is that of the vertical burner. The placement of footnote 9 is moved to the last sentence of this subparagraph for clarification.
In § 1633.7(i) the abbreviation “ca.” is changed to the word “approximately” for clarification.
In § 1633.12 concerning labeling, paragraph (a)(6)(iii) is corrected to make that paragraph concerning mattresses intended to be sold both alone and with a foundation consistent with paragraph (a)(6)(ii) concerning mattresses intended to be sold with a foundation. Also in § 1633.12, paragraph (d) is corrected to make clear that translation of the certification statement into another language on the reverse side of the required label is permitted.
Because these are technical corrections rather than substantive changes, notice and comment is not necessary. See 5 U.S.C. 553(b)(3)(B). The corrections clarify technical aspects of the flammability testing and labeling provisions. They do not change the substantive obligations of mattress manufacturers and importers. For the same reason, there is no need to delay the effective date for these corrections. Id. 553(d)(3).
Consumer protection, Flammable materials, Labeling, Mattresses and mattress pads, Records, Textiles, Warranties.
15 U.S.C. 1193, 1194.
Drug Enforcement Administration (DEA), Department of Justice.
Final rule.
The Drug Enforcement Administration (DEA) is amending the list of non-traditional countries authorized to export narcotic raw materials (NRM) to the United States by removing Yugoslavia and adding Spain. This rule provides DEA registered importers with another potential source from which to purchase NRM that are used in the production of controlled substances for medical purposes in the United States.
Christine A. Sannerud, PhD, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, telephone (202) 307-7183.
DEA enforces the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA) and the Controlled Substances Import and Export Act (21 U.S.C. 801,
Controlled substances are drugs that have a potential for abuse and psychological and physical dependence, including opiates, stimulants, depressants, hallucinogens, anabolic steroids, and drugs that are immediate precursors of these classes of substances. DEA lists controlled substances in 21 CFR Part 1308. The substances are divided into five schedules. Schedule I substances have a high potential for abuse and have no accepted medical use in treatment in the United States. These substances may only be used for research, chemical analysis, or manufacture of other drugs. Substances listed in schedules II—V have accepted medical uses but also have potential for abuse and psychological and physical dependence. Narcotic raw materials (opium, poppy straw, and concentrate of poppy straw (CPS)) are in schedule II and are the materials from which morphine, codeine, thebaine and oripavine are extracted for purposes of manufacturing a number of schedule II and III controlled substances.
In May 1979, the United Nations' Economic and Social Council (ECOSOC) adopted Resolution 471, which called on importing countries such as the United States to support traditional suppliers of NRM and to limit imports from non-traditional supplying countries. The resolution, which was reaffirmed by ECOSOC in 1981, was
Just as with DEA's 1979
Noting that in recent years there has been considerable stepping up of morphine producing capacity for export, leading to a situation of substantial overproduction of opiates,
Recognizing that it is essential to bring about a proper balance between the global supply and demand,
Taking note of the continued reliance placed by the world community on countries constituting the traditional sources of supply for its medical needs of opiate raw materials and the positive response of these countries in meeting the world requirements and their contribution in the maintenance of effective control systems;
Bearing in mind that the treaties which establish this system are based on the concept that the number of producers of narcotic materials for export should be limited in order to facilitate effective control; * * *
In view of these principles underlying Resolution 471, DEA stated in proposing the 80/20 rule in 1979:
The United States is a significant importer of narcotic raw materials. Its manufacturers account for one-third of the world morphine manufacturing capacity, most of which is consumed within the United States in the form of codeine.
Historically, the United States has relied exclusively upon imports of opium gum to manufacture our narcotic medical supplies instead of cultivating opium poppies in the United States. The rationale behind this 57-year-old policy, which foregoes [sic] U.S. self-sufficiency, was to set an example to the world community to refrain from overproduction and to limit the number of opium-producing nations to a minimum.
The foregoing principles remain central to United States drug control policy and this final rule amending the 80/20 rule.
Of the countries included in the 80/20 rule, India is the only country that cultivates poppies for production of opium. All other exporting countries use the CPS method of NRM production, a method that allows the plant to go to seed; portions of the plant are then processed into a concentrate. It is generally believed that CPS is less divertible than opium. CPS may be rich in morphine (CPS-M), rich in thebaine (CPS-T), or rich in oripavine (CPS-O). The United States imports the majority of its CPS-M from Turkey, with Australia supplying the vast majority of the balance. The vast majority of CPS-T and all CPS-O are imported from Australia.
The 80/20 rule was established based on traditional import amounts and on the United Nations resolution calling on member nations to support traditional sources that have been reliable suppliers and to take measures that curtail diversion. The United States allowed a limited number of non-traditional suppliers to have access to the United States market based on past commercial relationships and on the desirability of preserving alternative sources. This approach was consistent with the United Nations Resolution because it supported India and Turkey and ensured an adequate and uninterrupted supply of NRM while limiting the number of supplying countries. Over the last ten years, pursuant to the 80/20 rule, DEA registered importers of NRM have imported 90 percent of United States NRM requirements from traditional suppliers India and Turkey. DEA continues its support of the intent of the 80/20 rule.
On June 6, 2005, the Kingdom of Spain (hereinafter referred to as Spain) petitioned DEA seeking to be added to the list of non-traditional suppliers. Spain stated four reasons that granting its petition would be consistent with United States interests:
• The change would be consistent with the 80/20 rule because it maintains India and Turkey as the two traditional supplier countries, that is, Spain does not seek to be added to the list of traditional suppliers.
• The change would ensure adequate supplies of NRM.
• The change would not result in diversion because Spain maintains strict control and oversight over the cultivation and distribution of NRM.
• The change would allow DEA to monitor diversion and maintain cost-effective supplies.
In its petition, Spain explained that in the early 1970s, Spanish pharmaceutical firms sought authorization to cultivate opium poppies to produce NRM. In 1973, the Government of Spain authorized a single firm, Alcaliber, S.A., to cultivate, harvest, store, and prepare extracts from the opium poppy. Spain is now the fifth largest cultivator of opium poppies; Spain is the fourth largest producer of CPS and the third largest exporter of CPS-M.
After review of the petition, DEA published a Notice of Proposed Rulemaking (NPRM) in the
Following publication of the Notice of Proposed Rulemaking on October 4, 2006, DEA received a request for a 60-day extension to the comment period. On December 1, 2006, DEA extended the comment period of the proposed rule to January 3, 2007 (71 FR 69504).
During the comment period, DEA received 14 comments from 13 interested parties. Five comments were received from the following countries: Australia, Spain, Macedonia, and Turkey. One of the comments received from a foreign Government was a joint comment with a foreign control board. Three comments were received from three DEA-registered importers of NRM; one comment was received from a DEA-registered opiate manufacturer; one comment was received from a non-DEA registered firm; two comments were received from two foreign NRM manufacturers; and two comments were received from one individual. As part of the above-listed comments, DEA also received a request to extend the comment period, and four requests for a hearing.
After the comment period had ended, DEA received an additional comment from a foreign NRM manufacturer. This prompted two additional late comments, one from the foreign control board which previously commented on the NPRM and the other from the foreign government associated with that foreign control board. Specifically, both commenters sought clarification from DEA on the status of the late comment, which DEA had administratively added to the docket. The Administrative Procedure Act (APA) does not address the issue of late comments, and the United States courts generally defer to federal agencies in their handling of late comments. It is the policy of the DEA that comments not properly filed, e.g., comments postmarked after the close of a comment period, will not be considered by the agency in its deliberative process. Accordingly, the late comment from the foreign NRM manufacturer was not considered by DEA in this Final Rule. All comments received during the comment period are summarized here and discussed further below.
Four of the commenters supported the proposed rule. These commenters included the Government of Spain, a DEA registered NRM importer, one foreign NRM manufacturer, and a DEA-registered opiate manufacturer. One of the DEA registrants commented that the need to ensure an adequate number of sources of NRM for DEA-registered NRM importers is “most keenly felt in CPS-T and CPS-O, for which the U.S. demand is rapidly growing and in which global supply sources to the U.S. are currently quite limited.”
Nine of the commenters raised various concerns regarding the NPRM. These commenters included the Government of Australia, the Government of Macedonia, and the Government of Turkey; a foreign NRM control board; two DEA-registered importers of NRM; one non-DEA-registered firm; one foreign NRM manufacturer; and one individual.
Four commenters claimed that the proposed rule would exacerbate current global oversupplies of NRM and therefore disrupt the balance between the supply of and demand for NRM. Three commenters claimed that the proposed rule was not consistent with the intent of the 80/20 rule or international resolutions. Three commenters claimed that the proposed rule was not necessary to assist the United States in maintaining cost effective supplies of NRM. Three commenters questioned DEA's decision to replace Yugoslavia with Spain.
The following additional concerns were raised. One commenter believed that the addition of Spain to the list of non-traditional NRM producing countries would lead to a proliferation of NRM-producing countries. The commenter, however, did not provide further information as to how this rulemaking would specifically lead to a proliferation of NRM-producing countries. Additionally, one commenter claimed that Spain has diversion occurring within its borders and that it could not be proven that the addition of Spain to the list of non-traditional countries would not lead to an increase in diversion within Spain. While the commenter provided a general statement regarding the diversion of controlled substances, the commenter did not provide any specific evidence regarding the diversion of narcotic raw material specifically cultivated for lawful purposes in Spain. Due to the lack of substantiation for the claims discussed above, these comments are not addressed further in this rulemaking.
Four commenters requested that DEA hold an administrative hearing in this matter. Two of these commenters requested a hearing prior to the issuance of the final rule. One of these commenters stated that a hearing was appropriate “given the gravity and complexity of the issues involved.” The other commenter stated that a hearing would “provide interested parties with the fullest opportunity to make their views known and have their positions considered.” These commenters did not proffer any specific information beyond that submitted in the written comments, however, that would be brought to light if their requests for a hearing were granted. DEA has determined that an oral hearing prior to the issuance of this rule is unnecessary. The amendment of the 80/20 rule to substitute one non-traditional country for another that no longer exists in the form it did at the time of the promulgation of the original rule does not represent a major change in DEA policy or procedure. Moreover, DEA has carefully considered all of the comments received in connection with the proposal, and finds that the comments fully set forth the issues relevant to this rulemaking. Based on information provided in the comments, information provided in technical reports by the International Narcotics Control Board (INCB), and information provided by U.S. importers of NRM pursuant to DEA regulations, DEA has been able fully to address the relevant issues set forth in the comments and has determined that conducting a hearing would not materially add to the administrative record. DEA has concluded, therefore, that such a hearing would be unnecessary.
Two other commenters requested a hearing following the issuance of the final rule, if it is issued. Such a request does not conform procedurally with traditional rulemaking procedures under the APA, under which—if an agency holds a hearing in connection with a proposed rule—it is held prior to the issuance of the final rule. Moreover, neither the CSA nor DEA regulations provide for an administrative hearing to “appeal” the promulgation of a final rule. Pursuant to 21 U.S.C. 877, exclusive jurisdiction for appeals of DEA final decisions such as this rule rests with the United States Courts of Appeals. Accordingly, the requests for a hearing if the final rule is issued are denied.
One of the commenters wrote that if the proposal sought to change the method by which the 80/20 rule was calculated, then the commenter would object to the proposed rule. As noted previously, the 80/20 rule is calculated based on the amount of morphine alkaloid contained in the NRM. Since DEA's proposed rule and this rulemaking do not affect how the 80/20 rule is calculated, this matter is not addressed further in this rulemaking.
One commenter submitted two comments. One of these comments stated, “So we are deciding who to allow to do the exporting of substances that are used to make heroin? We allow this? And then kick down the doors of terminally ill patients who smoke marijuana just to ease their pain. * * *” The other comment promoted the use of hallucinogens. NRM imported into the United States pursuant to this rule are used to make legitimate medicines that are used to treat pain, not to manufacture heroin. Heroin production and the use of marijuana and hallucinogens are not the subject of this rulemaking; these matters are therefore not addressed further in this rulemaking.
Three commenters addressed the need to ensure adequate supplies of NRM for United States markets. One commenter noted that the need to ensure an adequate number of sources of NRM for DEA registered NRM importers was “most keenly felt in CPS-T and CPS-O, for which the U.S. demand is rapidly growing and in which global supply sources to the U.S. are currently quite limited.”
Oxycodone use in the United States has increased tremendously over the last 10 years. For example, the aggregate production quota for oxycodone, which represents the maximum amount that may be manufactured in the United States to meet the estimated medical, industrial, scientific, and research needs of the United States; for lawful export requirements; and the maintenance of reserve stocks, has increased over the last decade from 5,275 kg in 1997 to 49,200 kg in 2006. The large increase in oxycodone use in the United States followed the approval and marketing in 1995 of a high dose, single-entity, extended-release drug formulation known as OxyContin. Although DEA remains concerned over the diversion and abuse of OxyContin and other formulations that contain high doses of potent schedule II controlled substances, the Food and Drug Administration continues to advise DEA of double-digit growth in the oxycodone market through 2008. This provides evidence that the demand for thebaine-rich NRM that must be imported into the United States for this purpose will also continue to increase.
When the same 2006 quarterly statistical import data was reviewed for thebaine, DEA noted that 78.2 MT of thebaine was imported into the United States in 2006, having as its source the following countries: Australia (66.8 MT of thebaine; 85.4 percent), India (7.1 MT of thebaine; (9.1 percent), and France (4.1 MT of thebaine; 5.2 percent).
DEA notes that Australia has a stellar record in providing thebaine-rich NRM to the United States, with little (if any) record of diversion. DEA further notes that the United States and Australia have excellent relations in this area, and contrary to comments made by some commenters to this NPRM, DEA's proposed rule and this final rule in no
The Government of Australia's primary concern regarding DEA's proposed rule is that this rule would “exacerbate global oversupply” of NRM. In its comment, the Government of Australia pointed to statistical data published by the INCB in its report, “Narcotic Drugs: Estimated World Requirements for 2006—Statistics for 2004,” which the Government of Australia characterized as demonstrating that global production of both morphine-rich and thebaine-rich NRM have been in excess of global utilization since at least 2001. As a result of overproduction, the Government of Australia argued, global supplies have increased.
The DEA-registered NRM importer stated that “Alcaliber [the sole Spanish poppy cultivator] made a significant investment in capacity, dramatically increased production contributing significantly to global overproduction and excess stocks, and now wants access to the U.S. market to allow it to increase production further to help recover its investment.” The importer further stated that the Notice of Proposed Rulemaking sent the message that “If a country adds production capacity, uses it aggressively and thereby contributes to the world's build up of excess stocks, the U.S. will accommodate this behavior and reward it with access to the U.S. market. The U.S. will simply delete a smaller producer from the list.” This commenter also stated that “Spain was arguably the primary source of this build up in excess morphine stocks.”
Finally, the foreign opiate manufacturer stated that “Spain's rapid expansion of its domestic industry, its aggressive approach to building export markets, its building of clearly excessive stockpiles and capacity, and supply into a market already in over-supply is not * * * broadly in accordance with the obligations under the Single Convention, or the Resolutions.”
Among many of the requirements of NRM-producing countries, in accordance with the Single Convention on Narcotic Drugs, 1961, is a requirement to provide annual statistics to the INCB, including estimated amounts of NRM to be cultivated and the amount of NRM to be produced therefrom. The INCB utilizes these estimates along with other statistical data it collects, in accordance with the Single Convention, to monitor and analyze the global supply of and demand for NRM. The results of this analysis are published in a technical report series, which in 2004 was entitled, “Narcotic Drugs: Estimated World Requirements for 2006; Statistics for 2003.” The analysis conducted by the INCB and the statistical reports published continue to be an excellent resource for governments of consumer countries such as the United States. A review of this report series for 2004 and 2005 was conducted with relevant statistical data provided in Tables 1 and 2.
Neither DEA, nor any commenter, identified a single instance in these reports in which the INCB raised concerns over Spain's purported role in the global excess of production and the resulting oversupply of NRM presently on hand. According to this publication, Spain was one of eleven countries that cultivated morphine-rich poppies in 2003 for licit pharmaceutical purposes (i.e. non-culinary use). Spain planted 5,732 hectares of poppies and produced roughly 4.7 percent of the world's morphine-rich poppy straw. Spain's share of world production of poppy straw increased in 2004 to 10.7 percent; the increase was attributed to both an increase in 2004 acreage sown in Spain and a large decrease in acreage sown by the primary cultivator of poppies for this purpose, Turkey. Estimates for the “area to be cultivated” for 2005 and 2006 suggest that Spain will be responsible for 5.1 percent of the area under cultivation and had plans to decrease its area under cultivation in 2006 to 4.2 percent.
Although Spain remains one of the five largest cultivators of morphine-rich poppies in the world, DEA concludes that Spain, like all other producer and consumer countries, contributes to what the INCB qualifies as a “high” level of stocks of raw materials rich in morphine.
Australia is the principal cultivator of thebaine-rich poppies and is responsible for the vast majority of thebaine-rich CPS that is produced and imported into the United States. Although the INCB notes that production of thebaine-rich NRM exceeded demand substantially until 2002, DEA notes that the primary cultivators, Australia and France, began decreasing areas under cultivation in 2003 and have made significant decreases since that time in order to bring production in line with utilization. Although Spain noted cultivation of thebaine-rich poppies for the first time in 2004, it is not responsible for excess production that resulted in excess supplies before then.
As stated in DEA's Notice of Proposed Rulemaking, the 80/20 rule was promulgated following a resolution adopted by the United Nations' Economic and Social Council (ECOSOC) in 1979. In response to the resolution in 1979, DEA published an Advance Notice of Proposed Rulemaking (44 FR 33695, June 12, 1979) and then a Notice of Proposed Rulemaking (45 FR 9289, February 12, 1980). The comments resulting from the Notice of Proposed Rulemaking led to an administrative hearing. On August 18, 1981, DEA published a final rule promulgating the 80/20 rule (46 FR 41775).
Objections to the current Notice of Proposed Rulemaking pointed to specific comments in the 1979 resolution, the Notice of Proposed Rulemaking, the transcript of the administrative hearing, and considerations made by then-Acting Administrator Francis Mullen, Jr., in DEA's 1981 Final Rule.
The foreign opiate manufacturer stated that the 1979 ECOSOC resolution called on “importing countries to * * * take effective steps to support their traditional supplier countries” and urged “major producing and manufacturing countries to which have set up [sic] additional capacity in recent years to take effective measures to restrict substantially their production levels to assure a lasting balance between supply and demand and to prevent drug diversion to illicit channels.” The commenter believed that “[a]llowing Spain to now enter the market directly contradicts and undermines the objective of the Current 80/20 Rule, and rewards a country for engaging in the very conduct the Current 80/20 Rule, and the Resolutions, were intended to discourage or stop.”
The DEA-registered NRM importer who filed objections to the NPRM provided a summary of the determinations of fact made by Francis Young, the Administrative Law Judge (ALJ) who presided over the hearing in 1980; these findings were adopted by then-Acting Administrator Mullen when the final rule was promulgated. The DEA-registered importer provided the following summary of ALJ Young's determinations of fact: “(1) DEA could lawfully promulgate the regulatory amendments limiting the importation of narcotic raw materials; (2) the Administrator of DEA could lawfully
“Urge[d] the Governments of the importing countries that have not already done so to take effective steps to support the traditional supplier countries and to give those countries all the practical assistance they can in order to prevent the proliferation of sources of production of narcotic raw materials for export[.]”
Neither DEA nor the commenters disagree that the United States meets the first prong of this operative paragraph, i.e., the support of “traditional supply countries,” by providing India and Turkey with access to at least 80 percent of the United States market for morphine contained in NRM. As has been stated throughout this rule, DEA remains committed to this obligation through its continued support of the 80/20 rule. The commenter's objections would, therefore, fall under United States' obligations under the second prong of this operative paragraph, namely to give all practical assistance in preventing the proliferation of producing countries. Since it is not refuted that the Government of Spain has been engaged in the production of NRM since 1974, prior to international calls to prevent proliferation, DEA concludes that the Government of Spain is not a new or emerging participant in the global production of NRM. The addition of Spain to the 80/20 rule will not result in a proliferation of producer countries. DEA therefore concludes that this action is consistent with the 1979 resolution.
However, in view of the past commercial relations with certain other countries as sources of narcotic raw material supply and the desirability of preserving alternate sources of narcotic raw materials, it is appropriate to allow certain specific countries to compete for the U.S. narcotic raw materials market on a limited basis. These countries, France, Poland, Hungary and Yugoslavia have provided the United States with supplies of narcotic raw materials during the period 1975 and 1979 and represent appropriate alternate sources. Australia is included as well since it was the source of material for which import permits had been requested during that time period. In addition, we are presently persuaded that the nations mentioned above impose adequate controls over their production of narcotic raw materials in adherence to their obligations under the Single Convention. (46 FR 41775).
Then-Acting Administrator Mullen reaffirmed DEA's obligations to preserve alternate sources of NRM for the United States market. In an effort to determine the sources from which NRM could be derived, he established the following two criteria in designating the list of alternate sources: (1) The country had to have supplied the United States with NRM for a period of five years prior to the resolution's passage in 1979 and (2) the country had to have imposed adequate controls over the production of NRM consistent with its obligations under the Single Convention. In his decision, then-Acting Administrator Mullen created an exception to the first criterion; this exception allowed the Government of Australia to be added to the list of non-traditional suppliers. Specifically, then-Acting Administrator Mullen found that, if a country was not the source of imports during the period 1975-1979, then the country had to be a source from which DEA-registered importers of NRM had requested authority to import. Although Australia did not export NRM to the United States during the period 1975-1979, it was added because DEA-registered NRM importers had expressed interest in importing from Australia and had submitted to DEA the required “Application for Permit to Import Controlled Substances for Domestic and/or Scientific Purposes” (DEA-357) from Australia.
Based on this exception, one could conclude that Spain, despite not having been a source of NRM to the United States from 1975-1979, could qualify consistent with the 80/20 rule if a DEA-registered importer had expressed its interest in importing from Spain by filing a DEA-357, requesting authorization to do so. DEA notes, however, that the filing of such an application by a DEA-registered importer at present would be inconsistent with DEA regulations, specifically the 80/20 rule, and would therefore be impractical. Instead, interest in importing NRM from Spain arose through this rulemaking; DEA notes that one DEA-registered NRM importer expressed its interest in importing NRM from Spain during the comment period. DEA also notes that, during routine annual discussions with its five DEA-registered NRM importers before the receipt of the petition from the Government of Spain, the majority expressed some degree of interest in importing from Spain.
Neither the commenters nor DEA disagree with the statements of fact made by the Government of Spain that it has implemented a system of domestic controls for the handling of NRM that are consistent with the Single Convention; DEA concludes, as a result, that the second criterion has been satisfied.
DEA finds that adding Spain to the list of non-traditional suppliers is consistent with the criteria established in 1981 by then-Acting Administrator Mullen and is therefore consistent with the 80/20 rule.
One DEA-registered importer of NRM stated that DEA's Notice of Proposed
DEA disagrees with the implication made by the Government of Australia, however, in its statement that “Spain's assertion that its inclusion would further an underlying policy objective of the 80/20 Rule by ensuring an adequate and reliable supply at a stable price is based on a premise that prices of NRM have not been stable.” DEA concludes instead that the prices of NRM are directly related to the global stocks of these materials, which for more than the last 5 years have been in excess of global demand. For example, in the 2005 INCB publication, “Narcotic Drugs: Estimated World Requirements for 2006—Statistics for 2004,” the INCB reported that “global production of opiate raw materials rich in morphine exceeded global demand considerably during the period 2002-2004.” For opiate raw materials rich in thebaine, the INCB reported that “the total supply (production and stocks) continued to be above global demand also for thebaine-rich raw materials * * * and that the balance between supply and demand will continue to be positive.” DEA therefore concludes that the decrease in price noted by the commenters is more a function of excess supply rather than evidence of “robust competition,” for, as noted, Australia supplies the vast majority of the United States' demand for thebaine.
DEA further concludes that maintaining cost-effective supplies of NRM to the United States equates to striking a global balance between supply of and demand for NRM. For producer countries such as India, Turkey, Australia, France and Spain, this means reducing areas of cultivation in times when global supplies are in excess and increasing production (to the extent possible) if and when hardship arises in a producer country that results in global demand being in excess of supply. For consumer countries, such as the United States, this equates to: (1) Ensuring that there are an adequate number of sources from which to procure NRM during times in which supplies are not in excess, (2) communicating accurate estimates of United States requirements for NRM to authorized exporting countries, and (3) working with the international community, including the INCB, to ensure a global balance between supply and demand.
The Republic of Macedonia (Macedonia) forwarded a letter prepared by the only company licensed in Macedonia to purchase poppy straw and manufacture opiate alkaloids. The company raised concerns regarding DEA's comment in the NPRM that “the successor states to the former Yugoslavia no longer produce NRM for export.” The company disagreed with this observation, stating that Macedonia has been “enjoying the rights arising out of the 80/20 rule for more than 25 years.” The company therefore insisted that “Yugoslavia can only be replaced on the list with its legitimate successor state Macedonia.” A second commenter stated that DEA's proposed rule sought to “replace Macedonia with Spain.” Finally, a third commenter stated that DEA ignored “the position of its [Yugoslavia's] clear successor state, namely Macedonia.”
DEA also disagrees with Macedonia's assessment that its manufacturers have “enjoyed” the rights arising from the 80/20 rule for the last 25 years. The company did not provide any statistical data to demonstrate previous sales to the United States or anticipated sales to the United States. In this regard, DEA conducted a review of import permits issued for NRM over the last five years and did not identify an occasion in which a United States importer requested authority to import NRM from Macedonia. Instead, according to the most recent statistics available from the INCB (statistics for 2004), Macedonia did not export opium, poppy straw, or concentrate of poppy straw from 2002 through 2004. Instead, Macedonia reported the exportation of small quantities of morphine and codeine, schedule II controlled substances whose importation into the United States is generally regarded as being prohibited by DEA regulations unless specifically requested in limited quantities for use exclusively in scientific research (21 CFR 1312.13).
Based on the comments received, statistical data on imports of NRM collected and analyzed by DEA pursuant to the Code of Federal Regulations, and reports from the INCB, DEA concludes that in order to continue to ensure an adequate supply of NRM necessary to meet the estimated medical, industrial, scientific, and research needs of the United States, for lawful export requirements, and for the maintenance of adequate stocks, it is appropriate to add Spain to the list of non-traditional countries permitted to export NRM to the United States.
The Deputy Assistant Administrator, Office of Diversion Control, hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), that he has reviewed this regulation, and by approving it certifies
The Deputy Assistant Administrator, Office of Diversion Control, further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). It has been determined that this is a significant regulatory action. Therefore, this action has been reviewed by the Office of Management and Budget.
This rule meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Administrative practice and procedure, Drug traffic control, Exports, Imports, Reporting and recordkeeping requirements.
21 U.S.C. 952, 953, 954, 957, 958.
(f) Notwithstanding paragraphs (a)(1) and (a)(2) of this section, the Administrator shall permit, pursuant to section 1002(a)(1) or 1002(a)(2)(A) of the Act (21 U.S.C. 952(a)(1) or (a)(2)(A)), the importation of approved narcotic raw material (opium, poppy straw and concentrate of poppy straw) having as its source:
(1) Turkey,
(2) India,
(3) Spain,
(4) France,
(5) Poland,
(6) Hungary, and
(7) Australia.
(g) At least eighty (80) percent of the narcotic raw material imported into the United States shall have as its original source Turkey and India. Except under conditions of insufficient supplies of narcotic raw materials, not more than twenty (20) percent of the narcotic raw material imported into the United States annually shall have as its source Spain, France, Poland, Hungary and Australia.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a tolerance for residues of clothianidin in or on sugar beet roots, tops and molasses. Bayer CropScience requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective February 6, 2008. Objections and requests for hearings must be received on or before April 7, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2007-0280. To access the electronic docket, go to
Kable Bo Davis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.
• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.
• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to accessing an electronic copy of this
Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0280 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before April 7, 2008.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in
•
•
•
In the
Upon completing review of the current clothianidin database, the Agency concluded that the appropriate tolerance levels for clothianidin residues in or on pending crops should be established as follows: Beet, sugar, roots at 0.02 ppm, beet, sugar, molasses at 0.05 ppm and beet, sugar, dried pulp at 0.03 ppm. The Agency no longer considers sugar beet tops to be a significant livestock feedstuff; therefore, a separate tolerance for tops is not required.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....” These provisions were added to FFDCA by the Food Quality Protection Act (FQPA) of 1996.
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for tolerance for residues of clothianidin on beet, sugar, roots at 0.02 ppm, beet, sugar, molasses at 0.05 ppm and beet, sugar, dried pulp at 0.03. EPA's assessment of exposures and risks associated with establishing the tolerance follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information
Clothianidin does not appear to exhibit toxicity towards a consistent specific target organ. Decreases in body weight and body weight gain were observed in rats, dogs, and mice. In single-dose studies, mice (acute toxicity category II) appear more sensitive than rats (category IV). Clinical signs of neurotoxicity were exhibited in both mice (decreased motor activity, tremors, and deep respirations at 50 milligram/kilogram (mg/kg)) and rats (transient signs of decreased arousal, motor activity, and locomotor activity at 100 mg/kg) in acute neurotoxicity studies following exposure by gavage; however, no indications of neurotoxicity were observed following dietary exposure in the subchronic neurotoxicity study in rats. In a developmental neurotoxicity study in rats, decreased body weights, body weight gains, motor activity, and acoustic startle response amplitude (females) were seen in offspring at doses lower than those resulting in maternal toxicity. Although the NOAELs were similar for the subchronic and chronic feeding studies in the rat, a greater spectrum of effects was observed in the chronic study (decreased body weight, body weight gain, and food consumption plus additional observations in the liver, ovary, and kidney) versus the subchronic study (effects only on body weight and food consumption). In the rat, administration via the oral route appears to be more toxic than via the dermal route. In longer term studies, dogs exhibited clinical signs of anemia. The only observed effects in mice following chronic dietary administration were increases in vocalization and decreases in body weight and body weight gain. Clothianidin has been classified as not likely to be carcinogenic to humans.
There was no evidence of increased quantitative or qualitative susceptibility of rat or rabbit offspring in developmental studies; however, increased quantitative susceptibility of rat pups was seen in both the reproduction and developmental neurotoxicity studies. The degree of concern for both of these studies is low because the observed effects are well characterized, and there are clear NOAELs and LOAELs. The NOAEL for the effects of concern identified in the reproduction study (decreased mean body weight gain and absolute thymus weights in pups, delayed sexual maturation, and an increase in still births) is the basis for the endpoint selected for the chronic dietary and short-term, intermediate-term and long-term non-dietary risk assessments.
In adult rats, a guideline immunotoxicity study shows no clothianidin-mediated immunotoxicity at doses lower than those resulting in generalized signs of toxicity (e.g., decreases in body weight); however, it cannot be concluded that a similar lack of effects will occur in offspring. Based on evidence of decreased absolute and adjusted organ weights of the thymus and spleen in multiple studies in the clothianidin data base and on evidence of increased quantitative susceptibility of juvenile rats, compared to adults, in the 2-generation reproduction study to these effects, a developmental immunotoxicity (DIT) study has been required.
For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern (LOC) is derived from the highest dose at which the NOAEL in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the LOAEL is sometimes used for risk assessment. Uncertainty/safety factors (UFs) are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded.
For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for clothianidin used for human risk assessment can be found at
1.
i.
In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). The acute assessment is based on maximum residues of clothianidin observed in clothianidin and thiamethoxam field trials and assumes 100 percent crop treated (%CT).
ii.
iii.
iv.
The Agency used PCT information as follows:
The acute assessment is based on maximum residues of clothianidin observed in clothianidin field trials and assumes 100% crop treated. The chronic assessment is based on average residues from clothianidin field trials and also assumes 100% CT.
The Agency believes that the three conditions listed in Unit III. have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which clothianidin may be applied in a particular area.
2.
Based on the First Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated environmental concentrations (EECs) of clothianidin for acute exposures are estimated to be 7.29 parts per billion (ppb) for surface water and 5.84 ppb for ground water. The EECs for chronic exposures are estimated to be 1.35 ppb for surface water and 5.84 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 7.29 ppb was used to access the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 5.84 ppb was used to access the contribution to drinking water.
3.
Clothianidin is currently registered for the following residential non-dietary sites: Turfgrass. EPA assessed residential exposure using the following assumptions: The following exposure scenarios were assessed for residential post-application risks: Toddlers playing on treated turf, adults performing yard work on treated turf, and adults and youths playing golf on treated turf.
Additional information on residential exposure assumptions can be found at
4.
Clothianidin is a member of the neonicotinoid class of pesticides and is a metabolite of another neonicotinoid, thiamethoxam. Structural similarities or common effects do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same sequence of major biochemical events (EPA, 2002). Although clothianidin and thiamethoxam bind selectively to insect nicotinic acetylcholine receptors (nAChR), the specific binding site(s)/receptor(s) for clothianidin, thiamethoxam, and the other neonicotinoids are unknown at this time. Additionally, the commonality of the binding activity itself is uncertain, as preliminary evidence suggests that clothianidin operates by direct competitive inhibition, while thiamethoxam is a non-competitive inhibitor. Furthermore, even if future research shows that neonicotinoids share a common binding activity to a specific site on insect nicotinic acetylcholine receptors, there is not necessarily a relationship between this pesticidal action and a mechanism of toxicity in mammals. Structural variations between the insect and mammalian nAChRs produce quantitative differences in the binding affinity of the neonicotinoids towards these receptors, which, in turn, confers the notably greater selective toxicity of this class towards insects, including aphids and leafhoppers, compared to mammals. While the insecticidal action of the neonicotinoids is neurotoxic, the most sensitive regulatory endpoint for clothianidin is based on unrelated effects in mammals, including changes in body and thymus weights, delays in sexual maturation, and still births. Additionally, the most sensitive toxicological effect in mammals differs across the neonicotinoids (e.g., testicular tubular atrophy with thiamethoxam; mineralized particles in thyroid colloid with imidaclopid). Thus, there is currently no evidence to indicate that neonicotinoids share common mechanisms of toxicity, and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the neonicotinoids. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism released by EPA's Office of Pesticide Programs on EPA's website at
Note that because clothianidin is a major metabolite of thiamethoxam, EPA has combined exposure to clothianidin resulting both from thiamethoxam use and from use of clothianidin as an active ingredient and has compared this aggregate exposure estimate to relevant endpoints for clothianidin. EPA has taken the further conservative step of assuming that, in instances where both thiamethoxam and clothianidin are
1.
2.
In the 2-generation reproduction study, offspring toxicity (decreased body weight gains, delayed sexual maturation in males, decreased absolute thymus weights in F1 pups of both sexes, and an increase in stillbirths in both generations) was seen at a lower dose than the dose that caused parental toxicity. Based on evidence of decreased absolute and adjusted organ weights of the thymus and spleen in multiple studies in the clothianidin data base and on evidence of increased quantitative susceptibility of juvenile rats, compared to adults, in the 2-generation reproduction study to these effects. EPA has required that testing be conducted to assess immune system function in adults and in young animals following exposure during the period of organogenesis. No quantitative or qualitative susceptibility was observed in either of the developmental rat or rabbit studies. In the rat, no developmental toxicity was observed at the highest dose tested, although this dose level induced decreases in body weight gain and food consumption in the dams. In the rabbit, premature deliveries, decreased gravid uterine weights, an increase in litter incidence of a missing lobe of the lung, and a decrease in the litter average for ossified sternal centra per fetus were noted at a dose level in which maternal death, a decrease in food consumption, and clinical signs (scant feces and orange urine) were observed. Since the developmental effects observed in the rabbit study were seen in the presence of maternal toxicity, they are not considered to be qualitatively more severe than the maternal effects.
3.
The toxicology data base for clothianidin, however, is not complete for FQPA purposes. A complete complement of acceptable developmental, reproduction, developmental neurotoxicity, mammalian neurotoxicity and special neurotoxicity studies are available; however, due to evidence of decreased absolute and adjusted organ weights of the thymus and spleen in multiple studies in the clothianidin database, and because juvenile rats in the two-generation reproduction study appear to be more susceptible to these effects, EPA has determined that testing should be conducted to assess immune system function in adults and in young animals following developmental exposures. Given the levels at which this testing should be conducted it could result in selection of a more protective (i.e., lower) regulatory endpoint.
Due to the uncertainty with regard to potential effects on immune system function in young animals, EPA cannot conclude that there are reliable data supporting selection of a children's safety factor different from the presumptive 10X factor. Therefore, the 10X FQPA children's safety factor will be retained. This safety factor will be in the form of a database uncertainty factor to account for the lack of the testing with regard to immune system function with clothianidin.
Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded.
1.
2.
3.
Clothianidin is currently registered for use(s) that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic food and water and short-term exposures for clothianidin.
EPA has determined that, for clothianidin, the toxicological effects
4.
5.
Adequate liquid chromotography/mass spectrometry/mass spectrometry (LC/MS/MS) methods are available for both collecting data and enforcing tolerances for clothianidin residues in plant (Bayer Methods 00552 and 109240-1) and animal (Bayer Method 00624) commodities. The validated limit of quantitation (LOQ) for clothianidin in plant commodities is 0.010 ppm, except for wheat straw (0.020 ppm), and the validated LOQs are 0.010 ppm in milk and 0.020 ppm in animal tissues. All three of these methods have been reviewed by EPA's Analytical Chemistry Laboratory (ACL), approved for tolerance enforcement, and forwarded to FDA for inclusion in PAM Volume II.
There are no established or proposed Canadian, Mexican, or Codex maximum residue limits (MRLs) for clothianidin residues on sugar beet commodities.
Therefore, the tolerance is established for residues of (E)-1-(2-chloro-1,3-thiazol-5-ylmethyl)-3-methyl-2-nitroguanidine, in or on beet, sugar, roots at 0.02 ppm, beet, sugar, molasses at 0.05 ppm and beet, sugar, dried pulp at 0.03.
This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) proposes eliminating the time-in-grade restriction on advancement to competitive service positions in the General Schedule. Currently, employees in competitive service General Schedule positions at grades 5 and above must serve 52 weeks in grade before becoming eligible for promotion to the next grade level. Abolishing the restriction would eliminate the 52-week service requirement. If the requirement is eliminated, an employee must continue to meet occupational qualification standard requirements, and any additional job-related qualification requirements, established for the position.
Comments must be received on or before April 7, 2008.
You may submit comments, identified by RIN number “3206-AL18,” using any of the following methods:
Ms. Christina Gonzales Vay by telephone (202) 606-0960; by fax (202) 606-2329; by TTY (202) 418-3134; or by e-mail
Federal employees in General Schedule (GS) competitive service positions at grades 5 and above qualify for promotions to higher grades if they meet two criteria: (1) Have at least one year of specialized experience equivalent in difficulty to the next lower grade level or (in some cases) the equivalent education; and (2) have service of at least 52 weeks at their current grade (known as “time in grade”). We are proposing eliminating the time-in-grade restriction as a prerequisite for promotion.
The time-in-grade restriction originated in a statute called the
The
Before the
On June 14, 1995 (59
We propose eliminating time in grade for the following reasons:
Eliminating the time-in-grade restriction will not have an impact on how agencies now use qualification standards to evaluate candidates. Currently, candidates may demonstrate possession of either experience of at least one year (acquired through any paid or unpaid work or non-work setting or situation in which the experience enabled the individual to acquire the required competencies/knowledge, skills, or abilities) and/or the appropriate level of education as outlined in the OPM Operating Manual. Agencies must continue to ensure that candidates for promotion possess the required level of experience at the appropriate grade level (as defined in the classification standards) and/or meet the education requirements.
In addition to using OPM qualification standards and/or education levels, agencies also have the discretion to establish additional requirements beyond the OPM qualification standards that employees must meet for promotions. Many have done so. Examples of requirements include the specific level of performance to meet, possession of specific job-related competencies/knowledge, skills, and abilities, evidence that higher level duties exist, and/or availability of funds.
Eliminating the time-in-grade requirement will not eliminate the agency's determination on whether a candidate is qualified to perform the essential higher level duties. Rather, elimination of the 52-week time in grade waiting period reinforces the principle
Eliminating time in grade enables any Federal competitive service GS employee (regardless of current occupation or grade), who meets the qualification standards for a particular position, to become eligible for promotion to a competitive service GS position. This can be done through a competitive examination or under an agency's internal merit promotion procedures, as applicable. Elimination also gives agencies the flexibility to continue requiring employees to meet a specified amount of time in their current grade, regardless of their qualifications.
We do not believe time-in-grade elimination will lead to a large number of excessively rapid promotions Governmentwide. Over the years, many demonstration projects have waived the use of time in grade, especially when pay banding was incorporated. In these cases, agencies imposed their own internal policies regarding promotions which were similar to time in grade. In the China Lake demonstration project, for example, OPM data indicate workers progressed through the bands at a slower rate, at least initially, than people in the GS pay scale. (To illustrate, an employee in a competitive service GS position can sometimes receive a pay raise, a within-grade increase, and a promotion in the same year and do so again in consecutive years, whereas a more disciplined pay system makes movement through the band less automatic and rapid.) Moreover, we are not aware of any widespread abuses concerning those positions that do not have a time-in-grade requirement.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain Federal employees.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Freedom of information, Government employees, Reporting and recordkeeping requirements, Selective Service System.
Accordingly, OPM proposes to amend 5 CFR part 300 as follows:
1. Revise the authority citation for part 300 to read as follows:
5 U.S.C. 552, 3301, 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., page 218, unless otherwise noted.
Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 7204, 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.
Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.
Secs. 300.401 through 300.408 also issued under 5 U.S.C. 1302(c), 2301, and 2302.
Secs. 300.501 through 300.507 also issued under 5 U.S.C. 1103(a)(5).
2. Remove and reserve subpart F, consisting of §§ 300.601 through 300.606.
Coast Guard, DHS.
Notice of proposed rulemaking.
This proposed rule proposes restrictions on vessel movement in portions of the Calumet Sag Channel and the Little Calumet River during the annual Southland Regatta. The Southland Regatta is a university rowing race that will be held annually during the first weekend of November. This proposed rule is intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after regattas or marine parades.
Comments and related materials must reach the Coast Guard on or before May 6, 2008.
You may submit comments identified by Coast Guard docket number USCG-2008-0031 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)
(2)
(3)
(4)
CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, at (202) 366-9826.
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0031), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name, mailing address, and an e-mail address or other contact information in the body of your document to ensure that you can be identified as the submitter. This also allows us to contact you in the event further information is needed or if there are questions. For example, if we cannot read your submission due to technical difficulties and you cannot be contacted, your submission may not be considered. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can 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 the Department of Transportation's Privacy Act Statement in the
We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander, Coast Guard Sector Lake Michigan at the address under
This proposed rule will add a section to 33 CFR part 100 that will place restrictions on the portions of the Calumet Sag Channel and the Little Calumet River during the annual Southland Regatta. The Southland Regatta is a university rowing race that will be held annually during the first weekend of November.
This proposed rule is intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Southland Regatta. This proposed rule will establish restrictions upon and control the movement of vessels through a portion of the Calumet Sag Channel and the Little Calumet River immediately prior to, during, and immediately after the Southland Regatta.
This proposed rule would regulate all waters of the Calumet Sag Channel from the South Halstead Street Bridge at 41°39′27″ N, 087°38′29″ W; to the Crawford Avenue Bridge at 41°39′05″ N, 087°43′08″ W; and the Little Calumet River from the Ashland Avenue Bridge at 41°39′07″ N, 087°39′38″ W; to the junction of the Calumet Sag Channel. (DATUM: NAD 83).
The Captain of the Port will issue a notice of enforcement of the special local regulations established by this section, by all appropriate means, to the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners.
This proposed rule is not a “significant regulatory action” under
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.
The Coast Guard's use of this special local regulation will be periodic, of short duration, and designed to minimize the impact on navigable waters. This regulation will only be enforced immediately before, during, and immediately after the time the marine events occur. Furthermore, this special local regulation has been designed to allow vessels to transit unrestricted to portions of the waterways not affected by the special local regulation. The Coast Guard expects insignificant adverse impact to mariners from the activation of this special local regulation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
This proposed rule would affect the following entities, some of which might be small entities: The owners and operators of vessels intending to transit or anchor on the Calumet Sag Channel and the Little Calumet River on the first Saturday of November.
This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: This proposed rule would be in effect for short periods of time and only once per year; is designed to allow traffic to pass safely around the zone whenever possible; and allows vessels to pass through the zones with the permission of the Captain of the Port.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact CWO Brad Hinken, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such expenditure, we nevertheless discuss its effects elsewhere in this preamble.
This proposed rule will not effect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and does not create an environmental risk to health or safety that may disproportionately affect children.
The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this proposed rule or options for compliance are encourage to contact the point of contact listed under
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this proposed rule should be categorically excluded, under figure 2-1, paragraph 34(h) of the Instruction, from further environmental documentation. This proposed rule would establish a special local regulation issued in conjunction with a regatta or marine parade, and as such is covered by this paragraph.
A preliminary “Environmental Analysis Check List” and a preliminary “Categorical Exclusion Determination” are available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add § 100.910 to read as follows:
(a)
(b)
(c)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes a temporary safety zone within the navigable waters of the Pacific Ocean in Oceanside Harbor, California for the Ford Ironman 70.3 California Triathlon. This temporary safety zone is necessary to provide for the safety of the participants (swimmers), crew, spectators, and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative.
Comments and related material must reach the Coast Guard on or before March 3, 2008.
You may submit comments identified by Coast Guard docket number USCG-2007-0143 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)
(2)
(3)
(4)
If you have questions on this proposed rule, call Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego at (619) 278-7233. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
If you submit a comment, please include the docket number for this rulemaking (USCG-2007-0143), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can 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 the Department of Transportation's Privacy Act Statement in the
We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under
The Ford Ironman 70.3 California Triathlon is sponsored by North American Sports, Inc. The proposed event would consist of twenty-two hundred (2,200) participants. The waterside swim course begins in South Oceanside Harbor, with a turn-around in the vicinity of Oceanside Channel buoy 3, thence to the Oceanside Harbor Launch Ramp for a transition to the bicycle portion of the event. The 1.2 mile swim course would require a safety zone while swimmers are on the course, thus restricting all vessel traffic within Oceanside Harbor for three (3) hours. There will be six (6) to eight (8) kayaks, two (2) to four (4) paddle boards, fifteen (15) surfboards, and two (2) motorboats provided by the sponsor to enforce the safety zone.
The Coast Guard proposes to establish one (1) safety zone that will be enforced from 6:30 a.m. to 9:30 p.m. on Saturday, March 29, 2008 for the Ford Ironman 70.3 California Triathlon. This temporary safety zone is necessary for the safety of participant swimmers and the staff members of the race and will affect use of the waterway during the period of the event. The event will last for one day. The event is anticipated to draw fairly large crowds and the safety zone is established to ensure their safety. The limits of this temporary safety zone are the waters of Oceanside Harbor, California, including the entrance channel.
The Coast Guard will enforce the safety zone. The Coast Guard may be assisted by other federal, state, or local agencies, including the Coast Guard Auxiliary. Section 165.23 of Title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a safety zone. Vessels or persons violating this section will be subject to both criminal and civil penalties.
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.
This determination is based on the size and location of the safety zone within the water. Commercial and recreational vessels will not be allowed to transit through the designated safety zone during the specified times.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows:
(1) This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the portion of the Oceanside Harbor, California and the entrance channel from 6:30 a.m. to 9:30 a.m. on March 29, 2008.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only three (3) hours early in the day when vessel traffic is low. Although the safety zone would apply to the entire width of the harbor, traffic would be allowed to pass through the zone with the permission of the Coast Guard patrol commander. Before the effective period, we would publish local notice to mariners (LNM) before the safety zone is enforced.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Kristen Beer, Waterways Management, U. S. Coast Guard Sector San Diego at (619) 278-7233. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
1. The authority citation for part 165 continues to read as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295; 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
2. Add new § 165.T11-002 to read as follows:
(a)
(b)
(c)
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to designate 13 Early Action Compact (EAC) Areas as attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). The EAC areas agreed to reduce ground-level ozone pollution earlier than the Clean Air Act (CAA) required and to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. The States in which these 13 areas are located have submitted quality-assured data indicating that the areas are in attainment for the 8-hour ozone NAAQS based on ambient air monitoring data from 2005, 2006 and 2007. In addition, the EPA plans to revoke the 1-hour ozone NAAQS for each of these areas one year after the effective date of the designations for the 8-hour ozone NAAQS, and we would modify the 1-hour ozone NAAQS tables in the regulations to reflect the application of the revocation.
Comments must be received on or before February 21, 2008.
Submit your comments, identified by Docket ID no. EPA-HQ-OAR-2008-0006, by one of the following methods:
•
•
•
•
•
Ms. Barbara Driscoll, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-04, Research Triangle Park, NC 27711, phone number (919) 541-1051 or by e-mail at:
This proposed action applies only to the 13 EAC areas identified in section IV, Table 1, below that have deferred designations for the 8-hour ozone NAAQS until April 15, 2008. Additionally, this action notes that in the final rule, EPA plans to take the ministerial action of revising the CFR to reflect the effective date of the nonattainment designation for the Denver EAC area, which was designated nonattainment on November 20, 2007.
The information presented in this preamble is organized as follows:
The purpose of this document is to propose designating 13 EAC areas as attainment for the 8-hour ozone NAAQS, as they have met all the milestones of the EAC program and demonstrated that they were in attainment with the 8-hour ozone NAAQS by December 31, 2007. At the time we take final action on this proposal we also plan to take the ministerial action of revising Section 81.306 to reflect the nonattainment designation for the Denver EAC area. On September 21, 2007, EPA extended the deferred effective date for the Denver EAC area from September 14, 2007 to November 20, 2007, while settlement negotiations were taking place, and to
In addition, the EPA plans to revoke the 1-hour ozone NAAQS for each of these EAC areas one year after the effective date of the designations for the 8-hour ozone NAAQS, and we would modify the 1-hour ozone NAAQS tables in 40 CFR part 81 to reflect the application of the revocation. This action was taken for all other areas of the country except the EACs on August 3, 2005 (70 FR 44470).
Currently, there are 28 areas remaining in the EAC program. Of those 28 areas, 13 had their designations deferred for the ozone 8-hour NAAQ until April 15, 2008 (71 FR 69022).
You may find copies of all State reports at
The 13 EAC areas with deferred designations for the 8-hour NAAQS, had to meet one final milestone which was to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. Each of these EAC areas met all of the earlier milestones of the EAC program and the States in which the areas are located have now submitted quality-assured data demonstrating that the areas attained the 8-hour ozone NAAQS based on air quality data from 2005, 2006 and 2007. Therefore, EPA is proposing to designate these 13 areas as attainment for the 8-hour ozone standard. Table 1 provides the 8-hour ozone design values for each of the 13 EAC areas based on the 2005-2007 air quality data.
This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735; October 4, 1993) and is therefore not subject to review under the E.O.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501,
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this proposed rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Thus, this proposed rulemaking is not subject to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments because this rule does not contain Federal mandates.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the E.O. to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This proposed rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, E.O. 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and confined governments, EPA specifically solicits comment on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have “Tribal implications” as specified in E.O. 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has
Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The EAC program has provided cleaner air sooner than required under the CAA to these communities. The public is invited to submit or identify peer-reviewed studies and data, of which the agency may not be aware, that assessed results of early life exposure to ozone.
This proposed rule is not subject to E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355; May 22, 2001) because it is not a significant regulatory action under E.O. 12866.
Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.
This proposed rule does not involve technical standards. Therefore, EPA is not considering the use of any VCS. EPA welcomes comments on this aspect of the proposed rulemaking and specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.
Executive Order 12898 (59 FR 7629; Feb. 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety.
Environmental protection, Air pollution control.
42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1).
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to revoke certain tolerances for the herbicide sethoxydim and the insecticides dimethoate, fenamiphos, terbufos, and tetrachlorvinphos. Also, EPA is proposing to modify certain tolerances for the herbicides 2,4-D, DCPA, desmedipham, and sethoxydim and the insecticides dimethoate, fenamiphos, phorate, and tetrachlorvinphos. In addition, EPA is proposing to establish new tolerances for the herbicides bensulide and sethoxydim. The regulatory actions proposed in this document are in follow-up to the Agency's reregistration program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and tolerance reassessment program under the Federal Food, Drug, and Cosmetic Act (FFDCA) section 408(q).
Comments must be received on or before April 7, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0674 by one of the following methods:
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Jane Smith, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0048; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in Unit II.A. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This proposed rule provides a comment period of 60 days for any person to state an interest in retaining a tolerance proposed for revocation. If EPA receives a comment within the 60-day period to that effect, EPA will not proceed to revoke the tolerance immediately. However, EPA will take steps to ensure the submission of any needed supporting data and will issue an order in the
EPA issues a final rule after considering comments that are submitted in response to this proposed rule. In addition to submitting comments in response to this proposal, you may also submit an objection at the time of the final rule. If you fail to file an objection to the final rule within the time period specified, you will have waived the right to raise any issues resolved in the final rule. After the specified time, issues resolved in the
EPA is proposing to revoke, modify, and establish specific tolerances for residues of the herbicides 2,4-D, bensulide, DCPA, desmedipham, and sethoxydim and the insecticides fenamiphos, phorate, dimethoate, terbufos, and tetrachlorvinphos in or on commodities listed in the regulatory text.
EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FFDCA. The safety finding determination of “reasonable certainty of no harm” is discussed in detail in each Reregistration Eligibility Decision (RED) and Report of the Food Quality Protection Act (FQPA) Tolerance Reassessment Progress and Risk Management Decision (TRED) for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed copies of many REDs and TREDs may be obtained from EPA's National Service Center for Environmental Publications (EPA/NSCEP), P.O. Box 42419, Cincinnati, OH 45242-2419; telephone number: 1-800-490-9198; fax number: 1-513-489-8695; Internet at
The selection of an individual tolerance level is based on crop field residue studies designed to produce the maximum residues under the existing or proposed product label. Generally, the level selected for a tolerance is a value slightly above the maximum residue found in such studies, provided that the tolerance is safe. The evaluation of whether a tolerance is safe is a separate inquiry. EPA recommends the raising of a tolerance when data show that:
1. Lawful use (sometimes through a label change) may result in a higher residue level on the commodity.
2. The tolerance remains safe, notwithstanding increased residue level allowed under the tolerance.
Explanations for proposed modifications in tolerances can be found in the RED and TRED document and in more detail in the Residue Chemistry Chapter document which supports the RED and TRED. Copies of the Residue Chemistry Chapter documents are found in the Administrative Record electronically. Electronic copies are available through EPA's electronic public docket and comment system, regulations.gov at
EPA has determined that the aggregate exposures and risks are not of concern for the above-mentioned pesticide active ingredients based upon the data identified in the RED or TRED which lists the submitted studies that the Agency found acceptable.
EPA has found that the tolerances that are proposed in this document to be modified, are safe; i.e., that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residues, in accordance with FFDCA section 408(b)(2)(C). (Note that changes to tolerance nomenclature do not constitute modifications of tolerances). These findings are discussed in detail in each RED or TRED. The references are available for inspection as described in this document under
In addition, EPA is proposing to revoke certain specific tolerances because either they are no longer needed or are associated with food uses that are no longer registered under FIFRA. Those instances where registrations were canceled were because the registrant failed to pay the required maintenance fee and/or the registrant voluntarily requested cancellation of one or more registered uses of the pesticide. It is EPA's general practice to propose revocation of those tolerances for residues of pesticide active ingredients on crop uses for which there are no active registrations under FIFRA, unless any person in comments on the proposal indicates a need for the tolerance to cover residues in or on imported commodities or legally treated domestic commodities.
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Because the use of bensulide is limited to Texas, the Agency has determined that the carrot tolerance should be a regional tolerance. Therefore, EPA proposes transferring the carrot, root at 0.1 ppm tolerance in 40 CFR 180.241(a) to 40 CFR 180.241(c).
Based on available field trial data that indicate bensulide residues of concern are less than 0.15 ppm in/on the representative commodities (broccoli, cabbage, and Brussels sprouts) of the vegetable, brassica, leafy group 5, the Agency determined that the tolerance should be established for vegetable, brassica, leafy group 5 at 0.15 ppm. Therefore, EPA proposes establishing a tolerance in 40 CFR 180.241(a) for combined bensulide residues of concern in/on vegetable, brassica, leafy group 5 at 0.15 ppm.
The Agency is revising commodity terminology to conform to current practice. Therefore, EPA proposes revising the tolerances in 40 CFR 180.241 from onion, dry bulb to onion, bulb; and vegetable, fruiting to vegetable, fruiting, group 8.
Currently, there are no Codex MRLs (maximum residue levels) in place for bensulide.
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Currently, there are no Codex MRLs in place for desmedipham.
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Based on field trial residue data serving as the basis of the tolerance on potatoes at 0.2 ppm and translating those data to turnip roots, the Agency has determined that the tolerance in/on turnip roots should be decreased to 0.2 ppm. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.204(a) for the combined dimethoate residues of concern in/on turnip, roots from 2 ppm to 0.2 ppm.
Based on available field trial data that indicate dimethoate residues of concern less than 0.1 ppm in/on sorghum grain and forage, the Agency determined that the tolerance should be decreased to 0.1 ppm in/on sorghum, grain, forage and a tolerance should be established for sorghum, grain, stover at 0.1 ppm. EPA is also revising the commodity terminology to conform to current Agency practice. Therefore, EPA proposes decreasing and revising the tolerance in 40 CFR 180.204(a) for the combined dimethoate residues of concern from sorghum, forage at 0.2 ppm to sorghum, grain, forage at 0.1 ppm and establishing a tolerance on sorghum, grain, stover at 0.1 ppm.
EPA is revising the commodity terminology to conform to current Agency practice. Also, when the tolerance reassessment was conducted for reregistration on dimethoate, the tolerance on “wheat, green fodder” existed. The correct terminology for “wheat, green fodder” is “wheat, hay” and “wheat, forage.” Recently, 40 CFR 180.204 has been revised to align commodity terminology to current standards. At that time, the “wheat, green fodder” tolerance was revised to “wheat, hay” and the tolerance for “wheat, forage” was inadvertently omitted; therefore, the wheat, forage tolerance should be established. Lastly, the Agency is correcting the reference to 180.1(n) to 180.1(m) in 40 CFR 180.204(c). Therefore, EPA proposes revising the tolerances in 40 CFR 180.204(a) for the combined dimethoate residues of concern in/on alfalfa to alfalfa, forage and alfalfa, hay; from corn, forage to corn, field, forage and corn, sweet, forage; corn, grain to corn, field, grain and corn, pop, grain; corn, stover to corn, field, stover and corn, pop, stover; sorghum, grain to sorghum, grain, grain; soybean to soybean, seed; and turnip, greens to turnip, tops; proposes establishing a tolerance in/on wheat, forage at 2.0 ppm and proposes revising tolerances in 40 CFR 180.204(c) from cherry to cherry, sweet and cherry, tart and revising the reference of 180.1(n) to 180.1(m).
The Codex Alimentarius Commission has established separate maximum residue limits (MRLs) for dimethoate per se and omethoate per se in/on various commodities resulting from application of the insecticides dimethoate, formothion, and omethoate. By contrast, the U.S. tolerance expression is in terms of the combined residues of dimethoate and omethoate, as a metabolite. Formothion and omethoate are not currently registered for use in the U.S. Therefore, the Codex MRLs and U.S. tolerances are not harmonized with respect to MRL/tolerance expression.
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Based on the available field trial data that indicate fenamiphos residues of concern are less than 0.05 ppm in/on eggplant and Brussels sprouts, the Agency determined that the tolerances should be decreased to 0.05 ppm. The Agency is also decreasing the Brussels sprouts tolerance to harmonize with Codex. Therefore, EPA proposes decreasing the tolerance in 40 CFR 180.349(a)(1) for fenamiphos residues of concern in/on eggplant from 0.10 ppm to 0.05 ppm and Brussels sprouts from 0.10 ppm to 0.05 ppm.
Pineapple bran is no longer regulated as a commodity in accordance with Table 1.—Raw Agricultural and Processed Commodities and Feedstuffs Derived from Crops which is found in Residue Chemistry Test Guidelines OPPTS 860.1000 dated August 1996, available at
There are currently individual tolerances for grapefruit, lemon, lime, orange, and tangerine each at 0.60 ppm. Because there are established tolerances for the representative commodities for the fruit, citrus, group 10 and the use patterns on these commodities are the same, the Agency determined that the individual tolerances should be replaced with the fruit, citrus, group 10 tolerance. Further, in order to harmonize with the Codex MRLs, the Agency has determined the tolerances associated with these commodities should be decreased from 0.60 to 0.50 ppm. Therefore, EPA proposes removing the tolerances in 40 CFR 180.349(a)(1) for fenamiphos residues of concern in/on grapefruit; lemon; lime; orange, sweet; and tangerine each at 0.60 ppm and establishing a tolerance for fruit, citrus, group 10 at 0.50 ppm.
Based on revisions of the OPPTS Harmonized Test Guidelines--Series 860 Residue Chemistry Guidelines (August 1996) Table 1 available at
The Agency is revising commodity terminology to correspond to current Agency practice. Therefore, EPA proposes revising tolerances in 40 CFR 180.349(a)(1) for fenamiphos residues of concern in/on grape, raisins to grape, raisin and cherry to cherry, sweet and cherry, tart.
In accordance with section 6(f)(1) of FIFRA, the Agency issued a cancellation order published on December 10, 2003 (68 FR 68901) (FRL-7332-5). The order reflects the voluntary cancellations submitted by Bayer CropScience for product registrations containing fenamiphos effective May 31, 2007. The order requires the registrant to cease sale/distribution of products (by persons other that Bayer CropScience) containing fenamiphos by May 31, 2008. Bayer CropScience anticipates that commodities treated with fenamiphos may continue to be imported into the U.S. after the final effective dates and therefore supports import tolerances for banana; fruit, citrus, group 10; garlic; grape; and pineapple. In order to permit the use of existing stocks of products to clear the channels of trade and for tolerances to cover subsequent fenamiphos residues of concern on commodities, the Agency determined the tolerances should expire on December 31, 2009 except for those tolerances for import commodities (banana; fruit, citrus, group 10; citrus, dried pulp; citrus, oil; garlic; grape; and pineapple). The tolerances for banana; fruit, citrus, group 10; garlic; grape; and pineapple will not have a U.S. registration as of December 31, 2009, and will be designated as such by a footnote. Therefore, EPA proposes establishing an expiration/revocation date of December 31, 2009, on tolerances in 40 CFR 180.349 for fenamiphos residues of concern in/on apple; Brussels sprouts; cabbage; cherry, sweet; cherry, tart; eggplant; okra; peach; peanut; raspberry; strawberry; asparagus; beet, garden, roots; beet, garden, tops; Bok choy; kiwifruit; and pepper, nonbell and add the footnote “1 There are no U.S. registrations as of December 31, 2009.”
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Based on available field trial data that indicate phorate residues of concern are up to 2.0 ppm in or on hops, the Agency determined that the tolerance should be increased to 2.0 ppm. Therefore, EPA is proposing to increase the tolerances in 40 CFR 180.206(a) for phorate residues of concern in/on hop from 0.5 to 2.0 ppm. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.
The current tolerances in 40 CFR 180.206 are expressed in terms of phorate and its cholinesterase-inhibiting metabolites. The Agency has determined that the tolerance expression should be revised to harmonize with CODEX by regulating phorate, phorate sulfoxide, phorate sulfone, phorate oxygen analog, phorate oxygen analog sulfoxide, and the phorate oxygen analog sulfone, specifically. Therefore, EPA proposes revising the tolerance expression in 40 CFR 180.206(a) to regulate the combined residues of the insecticide phorate (O,O-diethyl S[(ethylthio) methyl]phosphorodithioate), phorate sulfoxide, phorate sulfone, phorate oxygen analog, phorate oxygen analog sulfoxide, and phorate oxygen analog sulfone.
When the tolerance reassessment was conducted for reregistration on phorate, the tolerance on “wheat, green fodder”
EPA is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising the tolerances in 40 CFR 180.206(a) for the combined residues of phorate and its cholinesterase-inhibiting metabolites from bean to bean, dry, seed and bean, succulent; coffee, bean, green to coffee, green bean; corn, forage to corn, field, forage and corn, sweet, forage; corn, grain to corn, field, grain; hop to hop, dried cones; sorghum, grain to sorghum, grain, grain; and soybean to soybean, seed; and revise the footnote to “There are no U.S. registrations as of September 1, 1993, for the use of phorate on the growing crop, coffee.”
The proposed tolerance actions herein for phorate, to implement the recommendations of the phorate IRED, reflect use patterns in the U.S. which support a different tolerance than the Codex level on beans, beets, coffee beans, because of differences in good agricultural practices. However, compatibility currently exists between U.S. tolerances and Codex MRLs for cottonseed and will exist (upon completion of this action) for phorate residues in or on potato, sorghum grain, soybean seed, field and sweet corn/maize.
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EPA is revising commodity terminology to conform to current Agency practice. Therefore, EPA proposes revising the tolerances in 40 CFR 180.412(a) for sethoxydim residues of concern in/on bean, forage to cowpea, forage; bean, hay to cowpea, hay; canola/rapeseed to rapeseed, seed and canola, seed; canola/rapeseed, meal to rapeseed, meal and canola, meal; coriander to coriander, leaves; corn, fodder to corn, field, fodder; corn, forage to corn, field, stover; fruit, citrus to fruit, citrus, group 10; fruit, pome to fruit, pome, group 11; peppermint, tops (stems and leaves) to peppermint, tops; potato flakes and potato granules to potato granules/flakes; potato waste, processed (wet and dry) to potato waste, processed; safflower to safflower, seed; soybean to soybean, seed; spearmint, tops (stems and leaves) to spearmint, tops; turnip, greens to turnip, tops; and vegetable, fruiting to vegetable, fruiting, group 8.
As part of improving sethoxydim tolerance harmonization between the U.S. and Canada, the Agency has reexamined the residue data and tolerance levels for bean, dry, seed at 20 ppm; lentil, seed at 30 ppm; and pea, dry, seed 40 ppm. Using the tolerance/MRL calculator developed under the North American Free Trade Agreement (NAFTA) and the dry peas, lentil, and dry bean field trial data which reflect similar use patterns, the Agency has determined the tolerances on the dry pea, lentil seed, and dry bean commodities can be revised to the pea and bean, dried shelled, except soybean, subgroup 6C at 25 ppm, which covers these commodities. Therefore, EPA proposes revising the tolerances in 40 CFR 180.412(a) for sethoxydim residues of concern from bean, dry seed at 20 ppm; lentil, seed at 30 ppm; and pea, dry, seed at 40 ppm to pea and bean, dried shelled, except soybean, subgroup 6C at 25 ppm.
Because apple dry pomace, citrus molasses, cotton seed soapstock, flax straw, peanut soapstock, tomato concentrated products, and tomato dry pomace are no longer recognized as raw agricultural commodities and are no longer considered to be significant food/feed items, the associated tolerances are no longer needed. The tolerance for flax seed currently covers the commodity flax, meal, therefore the flax, meal tolerance is no longer needed. Therefore, EPA is removing the tolerances in 40 CFR 180.412(a) in/on apple, dry pomace at 0.8 ppm; citrus, molasses at 1.5 ppm; cotton, seed, soapstock at 15 ppm; flax, straw at 2.0 ppm; flax, meal at 7 ppm; peanut, soapstock at 75.0 ppm; tomato, concentrated products at 24 ppm; and tomato, dry pomace at 12.0 ppm.
Currently, there are no Codex MRLs in place for sethoxydim.
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The Agency has determined that the coffee bean, green tolerance should be established for import purposes. The Agency is also revising the section to conform to current standards and configurations. Therefore, EPA proposes transferring the tolerance in 40 CFR 180.352(b) for the combined residues of terbufos and its cholinesterase-inhibiting metabolites in/on coffee bean, green at 0.05 ppm to 40 CFR 180.352(a); redesignate 40 CFR 180.352(b) as Section 18 emergency exemptions-reserved; establish 40 CFR 180.352(c) as tolerances with regional registrations-reserved and establish 40 CFR 180.352(d) as indirect or inadvertent residues - reserved.
EPA is revising commodity terminology to conform to current Agency practice and removing “(N)”- negligible residue designation associated with some of the tolerances because the term is no longer applicable. Because tolerances on corn, pop, forage and corn, pop, stover refer to the same commodity (i.e. duplicative) and because corn, pop, stover is the most current terminology, the Agency has determined the tolerance on corn, pop, forage should be removed. Therefore, EPA proposes revising the tolerances in 40 CFR 180.352(a) for the
The proposed tolerance actions herein for terbufos, to implement the recommendations of the terbufos RED, reflect different method levels of detection (LOD) where the LOD under the CODEX system is 0.01 ppm and the LOD under the U.S. system is 0.05 ppm which result in differing Codex levels on banana, corn/maize, popcorn, sugar beets, and sweet corn than the U.S. tolerances. Other differences in MRLs and tolerances between CODEX and the U.S. exist for cereal grain straw, fodder and stover because some are measured on a dry weight basis versus a wet weight basis. Lastly, the CODEX levels have changed since the tolerance reassessment such that, currently none of the U.S. tolerances and CODEX tolerances are harmonized.
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Currently, EPA has insufficient data to establish permanent tolerances for milk, cattle, hog and poultry commodities; however, EPA has been able to estimate tolerances for these livestock commodities using existing animal metabolism data on an interim basis of 18 months to permit time for the submission of additional data to support permanent tolerances. The tolerances are also being revised to address the additional tetrachlorvinphos metabolites of concern. Based on the metabolism data which indicate the tetrachlorvinphos residues of concern as high as 0.18 ppm in/on cattle and hog fat; 0.50 ppm in/on cattle and hog kidney; 0.38 ppm in/on cattle and hog liver; 1.86 ppm in/on cattle and hog meat; 0.50 ppm in/on cattle and hog meat byproducts except kidney and liver; 0.02 ppm in milk; 0.19 ppm in/on eggs; 6.1 ppm in/on poultry fat; 2.32 ppm in/on poultry meat; 1.27 ppm in/on poultry liver and 1.27 ppm in/on meat byproducts except liver, the Agency determined that interim tolerances should be established for 18 months at the decreased levels of 0.2 ppm (of which no more than 0.1 ppm is tetrachlorvinphos per se) in/on cattle and hog fat; and 0.05 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se) in/on milk, fat. The Agency also determined that interim tolerances should be established for 18 months at 1.0 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se) in/on cattle and hog kidney; 0.5 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se) in/on cattle and hog liver; 2.0 ppm (of which no more than 2.0 ppm is tetrachlorvinphos per se) cattle and hog meat; 1.0 ppm in/on cattle and hog meat byproducts except liver and kidney; 3.0 ppm (of which no more than 3.0 ppm is tetrachlorvinphos per se) in/on poultry meat; 2.0 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se) in/on poultry liver; and 2.0 ppm in/on poultry meat byproducts except liver. The Agency determined that interim tolerances should be established for 18 months at the increased level of 0.2 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se) in/on eggs; and 7.0 ppm (of which no more than 7.0 ppm is tetrachlorvinphos per se) in/on poultry fat. Therefore, EPA proposes revising and establishing 18-month time-limited tolerances in newly proposed 40 CFR 180.252(a)(1) for residues of the insecticide tetrachlorvinphos and its metabolites in/on cattle, fat and hog, fat from 1.5 ppm to 0.2 ppm (of which no more than 0.1 ppm is tetrachlorvinphos per se); cattle, kidney and hog, kidney at 1.0 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se); cattle, liver and hog, liver at 0.5 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se); cattle, meat and hog, meat at 2.0 ppm (of which no more than 2.0 ppm is tetrachlorvinphos per se); cattle, meat byproducts except kidney and liver and hog, meat byproducts except kidney and liver at 1.0 ppm; milk, fat at 0.05 ppm reflecting negligible residues in whole milk (of which no more than 0.05 ppm is tetrachlorvinphos per se); eggs from 0.1 to 0.2 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se); poultry, fat from 0.7 to 7.0 ppm (of which no more than 7.0 ppm is tetrachlorvinphos per se); poultry, meat at 3.0 ppm (of which no more than 3.0 ppm is tetrachlorvinphos per se); poultry, liver at 2.0 ppm (of which no more than 0.05 ppm is tetrachlorvinphos per se); and poultry, meat byproducts except liver at 2.0 ppm all of which expire on [18 months from the date of final publication]. The Agency determined that the increased tolerances are safe; i.e. there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue.
Because the Agency is taking action to establish the time-limited tolerances in/on cattle, hog and poultry commodities (above), the Agency has determined that the exception that permits “the safe use of tetrachlorvinphos as an additive to beef cattle, dairy cattle, horse and swine feed at the rates of 0.00015 lb per 100 lb body weight per day for cattle and horses, and 0.00011 lb per 100 lb body weight per day for swine” is no longer necessary. In addition, any uses of tetrachlorvinphos in/on horses destined for slaughter are prohibited. Therefore, EPA proposes revoking the tolerances in 40 CFR 180.252(a)(1) for residues of the insecticide tetrachlorvinphos in/on goat, fat at 0.5 ppm; horse, fat at 0.5 ppm; removing 40 CFR 180.252(a)(2); and changing the designation of 40 CFR 180.252(a)(1) to 40 CFR 180.252(a).
Currently, there are no Codex MRLs in place for tetrachlorvinphos.
A “tolerance” represents the maximum level for residues of pesticide chemicals legally allowed in or on raw agricultural commodities and processed foods. Section 408 of FFDCA, 21 U.S.C. 346a, as amended by FQPA of 1996, Public Law 104-170, authorizes the establishment of tolerances, exemptions from tolerance requirements, modifications in tolerances, and revocation of tolerances for residues of pesticide chemicals in or on raw agricultural commodities and processed foods. Without a tolerance or exemption, food containing pesticide residues is considered to be unsafe and therefore “adulterated” under section 402(a) of FFDCA, 21 U.S.C. 342(a). Such food may not be distributed in interstate commerce (21 U.S.C. 331(a)). For a food-use pesticide to be sold and distributed, the pesticide must not only have appropriate tolerances under the FFDCA, but also must be registered
EPA is proposing these tolerance actions to implement the tolerance recommendations made during the reregistration and tolerance reassessment processes (including follow-up on canceled or additional uses of pesticides). As part of these processes, EPA is required to determine whether each of the amended tolerances meets the safety standard of FQPA. The safety finding determination is discussed in detail in each post-FQPA RED and TRED for the active ingredient. REDs and TREDs recommend the implementation of certain tolerance actions, including modifications to reflect current use patterns, to meet safety findings, and change commodity names and groupings in accordance with new EPA policy. Printed and electronic copies of the REDs and TREDs are available as provided in Unit II.A.
EPA has issued post-FQPA REDs (and Interim REDs) for 2,4-D, bensulide, DCPA, desmedipham, dimethoate, fenamiphos, phorate, sethoxydim, terbufos, and tetrachlorvinphos, whose REDs were completed prior to FQPA. Also, EPA issued a RED prior to FQPA for tetrachlorvinphos and made a safety finding which reassessed its tolerances according to the FFDCA standard, maintaining them when new tolerances were established as noted in Unit II.A. REDs and TREDs contain the Agency's evaluation of the database for these pesticides, including requirements for additional data on the active ingredients to confirm the potential human health and environmental risk assessments associated with current product uses, and in REDs state conditions under which these uses and products will be eligible for reregistration. The REDs and TREDs recommended the establishment, modification, and/or revocation of specific tolerances. RED and TRED recommendations such as establishing or modifying tolerances, and in some cases revoking tolerances, are the result of assessment under the FFDCA standard of “reasonable certainty of no harm.” However, tolerance revocations recommended in REDs and TREDs that are proposed in this document do not need such assessment when the tolerances are no longer necessary.
EPA's general practice is to propose revocation of tolerances for residues of pesticide active ingredients on crops for which FIFRA registrations no longer exist and on which the pesticide may therefore no longer be used in the United States. EPA has historically been concerned that retention of tolerances that are not necessary to cover residues in or on legally treated foods may encourage misuse of pesticides within the United States. Nonetheless, EPA will establish and maintain tolerances even when corresponding domestic uses are canceled if the tolerances, which EPA refers to as “import tolerances,” are necessary to allow importation into the United States of food containing such pesticide residues. However, where there are no imported commodities that require these import tolerances, the Agency believes it is appropriate to revoke tolerances for unregistered pesticides in order to prevent potential misuse.
Furthermore, as a general matter, the Agency believes that retention of import tolerances not needed to cover any imported food may result in unnecessary restriction on trade of pesticides and foods. Under section 408 of FFDCA, a tolerance may only be established or maintained if EPA determines that the tolerance is safe based on a number of factors, including an assessment of the aggregate exposure to the pesticide and an assessment of the cumulative effects of such pesticide and other substances that have a common mechanism of toxicity. In doing so, EPA must consider potential contributions to such exposure from all tolerances. If the cumulative risk is such that the tolerances in aggregate are not safe, then every one of these tolerances is potentially vulnerable to revocation. Furthermore, if unneeded tolerances are included in the aggregate and cumulative risk assessments, the estimated exposure to the pesticide would be inflated. Consequently, it may be more difficult for others to obtain needed tolerances or to register needed new uses. To avoid potential trade restrictions, the Agency is proposing to revoke tolerances for residues on crops for uses for which FIFRA registrations no longer exist, unless someone expresses a need for such tolerances. Through this proposed rule, the Agency is inviting individuals who need these import tolerances to identify themselves and the tolerances that are needed to cover imported commodities.
Parties interested in retention of the tolerances should be aware that additional data may be needed to support retention. These parties should be aware that, under FFDCA section 408(f), if the Agency determines that additional information is reasonably required to support the continuation of a tolerance, EPA may require that parties interested in maintaining the tolerances provide the necessary information. If the requisite information is not submitted, EPA may issue an order revoking the tolerance at issue.
When EPA establishes tolerances for pesticide residues in or on raw agricultural commodities, consideration must be given to the possible residues of those chemicals in meat, milk, poultry, and/or eggs produced by animals that are fed agricultural products (for example, grain or hay) containing pesticides residues (40 CFR 180.6). When considering this possibility, EPA can conclude that:
1. Finite residues will exist in meat, milk, poultry, and/or eggs.
2. There is a reasonable expectation that finite residues will exist.
3. There is a reasonable expectation that finite residues will not exist. If there is no reasonable expectation of finite pesticide residues in or on meat, milk, poultry, or eggs, tolerances do not need to be established for these commodities (40 CFR 180.6(b) and (c)).
EPA has evaluated certain specific meat, milk, poultry, and egg tolerances proposed for revocation in this document and has concluded that there is no reasonable expectation of finite pesticide residues of concern in or on those commodities.
EPA is proposing that the tolerance actions herein become effective on the date of publication of the final rule in the
Any commodities listed in this proposal treated with the pesticides subject to this proposal, and in the channels of trade following the tolerance revocations, shall be subject to FFDCA section 408(1)(5), as established by FQPA. Under this unit, any residues
1. The residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA, and
2. The residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption from a tolerance. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.
The tolerance actions in this proposal are not discriminatory and are designed to ensure that both domestically produced and imported foods meet the food safety standards established by FFDCA. The same food safety standards apply to domestically produced and imported foods.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international Maximum Residue Limits (MRLs) established by the Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level in a notice published for public comment. EPA's effort to harmonize with Codex MRLs is summarized in the tolerance reassessment section of individual REDs and TREDs, and in the Residue Chemistry document which supports the RED and TRED, as mentioned in Unit II.A. Specific tolerance actions in this proposed rule and how they compare to Codex MRLs (if any) are discussed in Unit II.A.
In this proposed rule, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (e.g., establishment and modification of a tolerance and tolerance revocation for which extraordinary circumstances do not exist) from review under Executive Order 12866, entitled
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
1. The authority citation for part 180 continues to read as follows:
21 U.S.C. 321(q), 346a and 371.
2. Section 180.142 is amended by revising the entries for “Grape,” “Fruit, pome, group 11,” “Fruit, stone, group 12,” and “Strawberry” in the table in paragraph (a) to read as follows:
(a)
3. Section 180.185 is amended by removing the entry for “Vegetable, brassica, leafy, group 5” from the table in paragraph (d) and adding it alphabetically to the table in paragraph (a) to read as follows.
(a)
4. Section 180.204 is amended by revising the table in paragraphs (a) and (c) to read as follows:
(a)
(c)
5. Section 180.206 is amended by revising paragraph (a) to read as follows:
(a)
6. Section 180.241 is amended by revising the heading and paragraphs (a) and (c) to read as follows:
(a)
(c)
7. Section 180.252 is amended by revising paragraph (a) to read as follows:
(a)
8. Section 180.349 is amended by revising paragraph (a) and the table in paragraph (c) to read as follows:
(a)
(c)
9. Section 180.352 is revised to read as follows:
(a)
(b)
(c)
(d)
10. Section 180.353 is amended by revising the table in paragraph (a) to read as follows:
(a)
11. Section 180.412 is amended by revising the table in paragraph (a) to read as follows:
(a)
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on whether to amend its rules governing pole attachments, which are designed to ensure the attachment of facilities of cable television systems and telecommunications carriers to utility poles, ducts, conduits, or rights-of-way (collectively, “pole attachments”) at just and reasonable rates, terms and conditions. The Commission has received petitions for rulemaking from Fibertech Networks, LLC and United States Telecom Association seeking review of the current pole attachment rules, which petitioners and commenters claim are inadequate in scope or no longer accord with developing technology and business models. The Commission seeks to resolve questions regarding appropriate regulation of pole attachment rates, terms, and conditions of access.
Comments are due March 7, 2008 and Reply Comments are due March 24, 2008. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before April 7, 2008.
You may submit comments, identified by WC Docket No. 07-245, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Jonathan Reel, 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
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file Comments on or before March 7, 2008 and Reply Comments on or before March 24, 2008. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
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• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be
This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Implementation of Section 224 of the Act; Amendment of the Commission's Rules and Policies Governing Pole Attachments
1. In this Notice of Proposed Rulemaking (
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6. The Commission also seeks comment regarding possible changes in bargaining power between electric utilities and incumbent LECs, and whether pole attachment rates paid by incumbent LECs could affect the vitality of competition to deliver telecommunications, video services, and broadband Internet access service. The Commission seeks comment on developments related to rates, costs, and bargaining power between electric utilities and incumbent LECs. The Commission seeks comment regarding “joint use agreements,” including the number and percentage of poles that are owned or managed jointly, and how to evaluate when ownership and control of poles is truly “joint.” The Commission also seeks comment on claims that small and rural incumbent LECs are particularly at a disadvantage.
7.
8. The statute does not specify which of these rates, if either, should apply to transmission of information access services. The Commission seeks comment on the extent to which the current cable rate formula, whose space factor does not include unusable space, results in a subsidized rate, and, if so, whether cable operators should continue to receive such subsidized pole attachment rate at the expense of electric consumers. The Commission seeks comment on whether cable operators should continue to qualify for the cable rate where they offer multiple services in addition to cable service, and whether all telecommunications carriers must pay the telecommunications rate, regardless of what other services they may provide over their attachments. The Commission asks under what circumstances the Commission may adopt another rate, what is the extent of the Commission's ability to modify how the cable and telecommunications rates are applied. The Commission further asks whether wireless carriers are entitled to attach equipment at the subsection (e) telecommunications rate, or whether their attachments differ to such an extent that another rate would be more reasonable. The Commission seeks comment on the reach of its general authority to regulate pole attachments pursuant to section 224(b), asking whether it has the authority under section 224 to regulate pole attachment rates for all providers of telecommunications services, including incumbent LECs.
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12. The Commission also seeks comment regarding whether having two rates leads to recurring disputes over which rate to apply, and solicits general comment on whether the current system is clear, certain, and enforceable, and to what extent there is a perceived uncertainty about which rate to apply. The Commission adopted specific formulas implementing the cable rate and telecommunications rate, which differ only in the manner in which the costs associated with the unusable portion of the pole are allocated. Both of these formulas include a component for the net costs of a bare pole and the carrying charge rate. Carrying charges are the costs incurred by the utility in owning and maintaining poles regardless of the presence of pole attachments. TWTC argues that the similarities in the Commission's cable rate and telecommunications rate formulas are inappropriate, in light of textual differences between section 224(d) and section 224(e) regarding costs. In particular, TWTC contends that the telecommunications rate includes elements not mentioned in section 224(e), citing (1) the “carrying charges” and (2) the “rate of return” element. TWTC alleges that such costs “bear no relation” to the cost of providing space for attachment and should be eliminated from the telecommunications rate. The Commission seeks comment on the desirability of moving to a single pole attachment rate and also on the appropriate level of such a single rate. The Commission invites comment on the possible effect on small entities from adopting a single rate.
13. The Commission seeks comment on USTelecom's suggestion that the default “just and reasonable” attachment rate for incumbent LECs should be the telecommunications rate. The Commission asks if it adopts rules or guidelines for jointly owned poles how it should consider variables such as the proportion of poles owned, the division of maintenance costs and responsibilities, the income each party receives from other attachers, and similar variables. The Commission also seeks comment regarding whether, given the historical and continuing relationship regarding pole ownership between electric utilities and incumbent LECs, a “just and reasonable” rate for incumbent LECs should be determined by a method other than by applying a rate formula, and seeks comment on alternative approaches. The Commission further seeks comment on whether the historical relationship between incumbent LECs and power companies suggests that it should adopt a purely procedural solution instead of applying a rate formula, such as requiring parties to engage in mediated negotiation or arbitration subject to Commission review.
14. Wireless telecommunications carriers urge the Commission to adopt rules explicitly stating that the Commission's telecommunications rate formula applies to the attachment of wireless devices. The Commission has found no clear indication that the rules could not accommodate wireless attachers' use of poles. The Commission now seeks comment on whether, when they are “telecommunications carriers,” wireless providers are entitled to the telecommunications rate as a matter of law, or whether the Commission should adopt a rate specifically for wireless pole attachments. The Commission asks whether, if a wireless facility uses more than the presumptive one foot of space, the per-foot rate could simply be doubled, trebled, or otherwise multiplied as required. The Commission also asks whether, if wireless providers are permitted to attach facilities to pole tops, pole owners should receive a higher rate of compensation, because unlike lateral space, each pole has only one top. The Commission also seeks comment on the extent to which municipalities lease pole attachments for municipal broadband purposes or other services such as telecommunications services, and seeks comment on the impact that the tentative conclusion below might have on municipalities seeking to provide their residents municipal broadband or other services like telecommunications services.
15.
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17. The Commission also seeks comment on allegations or concerns regarding unauthorized attachments, or attachments that have been installed without a lawful attachment agreement. The Commission seeks comment on the prevalence of this practice, and whether the Commission's existing enforcement mechanisms are sufficient to address any unlawful practices by attachers and ensure the safety and reliability of critical electric infrastructure. Commenters are asked to address whether, in addition to the right, under section 224(f)(2) of the Act, of a utility to deny access to poles on a nondiscriminatory basis for reasons of safety, reliability and generally applicable engineering purposes, specific enforceable safety requirements should be adopted. For example, commenters are asked to address to what extent safety codes, such as the National Electrical Safety Code, should apply to all attachers, and whether the Commission's enforcement authority can or should be used to address alleged violations of such codes. Finally, the Commission seeks comment on the general usefulness of rules, presumptions, or guidelines, as opposed to case-specific adjudication, and seeks comment on how these alternative approaches to resolving access issues may affect small entities.
18. The rulemaking this
19. As required by the Regulatory Flexibility Act of 1980, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth separately below. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA. Comments are due on March 7, 2008 and Reply Comments are due on March 24, 2008.
20. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.
21. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this
22. The
23. The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 1, 4(i), 4(j), 224, 303 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i)-(j), 224, 303, 403.
24. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
25. Small Businesses. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data.
26. Small Organizations. Nationwide, there are approximately 1.6 million small organizations.
27. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. The Commission estimates that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.
28. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that,
29. Incumbent LECs. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent LECs. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the Commission's action.
30. Competitive LECs, Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 859 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive LEC services. Of these 859 carriers, an estimated 741 have 1,500 or fewer employees and 118 have more than 1,500 employees. In addition, 16 carriers have reported that they are “Shared-Tenant Service Providers,” and all 16 are estimated to have 1,500 or fewer employees. In addition, 44 carriers have reported that they are “Other Local Service Providers.” Of the 44, an estimated 43 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities.
31. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 330 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 309 have 1,500 or fewer employees and 21 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by Commission action.
32. Below, for those services subject to auctions, the Commission notes that, as a general matter, the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments or transfers, unjust enrichment issues are implicated.
33. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small.
34. Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the broad economic census category “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this category and size standard, the majority of firms can be considered small. Also, according to Commission data, 437 carriers reported that they were engaged in the provision of cellular service, Personal Communications Service (PCS), or Specialized Mobile Radio (SMR) Telephony services, which are placed together in the data. The Commission has estimated that 260 of these are small under the SBA small business size standard.
35. Paging. The SBA has developed a small business size standard for the broad economic census category of “Paging.” Under this category, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. In addition, according to Commission data, 365 carriers have reported that they are engaged in the provision of “Paging and Messaging Service.” Of this total, the Commission estimates that 360 have 1,500 or fewer employees, and five have more than 1,500 employees. Thus, in this category the majority of firms can be considered small.
36. We also note that, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. In this context, a small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA has approved this definition. An auction of Metropolitan Economic Area (MEA) licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming small business status won 440 licenses. An auction of MEA and Economic Area (EA) licenses commenced on October 30, 2001, and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third
37. Wireless Telephony. Wireless telephony includes cellular, personal communications services (PCS), and specialized mobile radio (SMR) telephony carriers. As noted earlier, the SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony. The Commission has estimated that 221 of these are small under the SBA small business size standard.
38. Broadband Personal Communications Service. The broadband Personal Communications Service (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission defined “small entity” for Blocks C and F as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For Block F, an additional classification for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years.” These standards defining “small entity” in the context of broadband PCS auctions have been approved by the SBA. No small businesses, within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 small and very small business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D, E, and F Block licenses. There were 48 small business winning bidders. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant.
39. Narrowband Personal Communications Services. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. In the future, the Commission will auction 459 licenses to serve Metropolitan Trading Areas (MTAs) and 408 response channel licenses. There is also one megahertz of narrowband PCS spectrum that has been held in reserve and that the Commission has not yet decided to release for licensing. The Commission cannot predict accurately the number of licenses that will be awarded to small entities in future auctions. However, four of the 16 winning bidders in the two previous narrowband PCS auctions were small businesses, as that term was defined. The Commission assumes, for purposes of this analysis that a large portion of the remaining narrowband PCS licenses will be awarded to small entities. The Commission also assumes that at least some small businesses will acquire narrowband PCS licenses by means of the Commission's partitioning and disaggregation rules.
40. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). The Commission uses the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies adopted herein.
41. Air-Ground Radiotelephone Service. The Commission has not adopted a small business size standard specific to the Air-Ground Radiotelephone Service. The Commission will use SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 100 licensees in the Air-Ground Radiotelephone Service, and the Commission estimates that almost all of them qualify as small under the SBA small business size standard.
42. Offshore Radiotelephone Service. This service operates on several UHF television broadcast channels that are not used for television broadcasting in the coastal areas of states bordering the Gulf of Mexico. There are presently approximately 55 licensees in this service. The Commission is unable to estimate at this time the number of licensees that would qualify as small under the SBA's small business size standard for “Cellular and Other Wireless Telecommunications” services. Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees.
43. Cable Television Distribution Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated
44. Cable Companies and Systems. The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small.
45. Cable System Operators. The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore the Commission is unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.
46. Open Video Systems (OVS). In 1996, Congress established the open video system (OVS) framework, one of four statutorily recognized options for the provision of video programming services by local exchange carriers (LECs). The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard of Cable and Other Program Distribution Services, which consists of such entities having $13.5 million or less in annual receipts. The Commission has certified 25 OVS operators, with some now providing service. Broadband service providers (BSPs) are currently the only significant holders of OVS certifications or local OVS franchises. As of June 2005, BSPs served approximately 1.4 million subscribers, representing 1.5 percent of all MVPD households. Affiliates of Residential Communications Network, Inc. (RCN), which serves about 371,000 subscribers as of June 2005, is currently the largest BSP and 14th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. The Commission thus believes that at least some of the OVS operators may qualify as small entities.
47. Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers (ISPs). ISPs “provide clients access to the Internet and generally provide related services such as web hosting, web page designing, and hardware or software consulting related to Internet connectivity.” Under the SBA size standard, such a business is small if it has average annual receipts of $23 million or less. According to Census Bureau data for 2002, there were 2,529 firms in this category that operated for the entire year. Of these, 2,437 firms had annual receipts of under $10 million, and an additional 47 firms had receipts of between $10 million and $24,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by Commission action.
48. All Other Information Services. “This industry comprises establishments primarily engaged in providing other information services (except new syndicates and libraries and archives).” The SBA has developed a small business size standard for this category; that size standard is $6.5 million or less in average annual receipts. According to Census Bureau data for 2002, there were 155 firms in this category that operated for the entire year. Of these, 138 had annual receipts of under $5 million, and an additional four firms had receipts of between $5 million and $9,999,999. Consequently, the Commission estimates that the majority of these firms are small entities that may be affected by its action.
49. Electric Power Generation, Transmission and Distribution. The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) Operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This category includes Electric Power Distribution, Hydroelectric Power Generation, Fossil Fuel Power Generation, Nuclear Electric Power Generation, and Other Electric Power Generation. The SBA has developed a small business size standard for firms in this category: “A firm is small if, including its affiliates, it is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and its total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.” According to Census Bureau data for 2002, there were 1,644 firms in this category that operated for the entire year. Census data do not track electric output and the Commission has not determined how many of these firms fit the SBA size standard for small, with no more than 4 million megawatt hours of electric output. Consequently, the Commission estimates that 1,644 or fewer firms may be considered small under the SBA small business size standard.
50. Natural Gas Distribution. This economic census category comprises: “(1) Establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers.” The SBA has developed a small business size standard for this industry, which is: All such firms having 500 or fewer employees. According to Census Bureau data for 2002, there were 468 firms in this category that operated for the entire year. Of this total, 424 firms had employment of fewer than 500
51. Water Supply and Irrigation Systems. This economic census category “comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems.” The SBA has developed a small business size standard for this industry, which is: All such firms having $6.5 million or less in annual receipts. According to Census Bureau data for 2002, there were 3,830 firms in this category that operated for the entire year. Of this total, 3,757 firms had annual sales of less than $5 million, and 37 firms had sales of $5 million or more but less than $10 million. Thus, the majority of firms in this category can be considered small.
52. Should the Commission alter the pole attachment rate structure, such action could result in increased, reduced, or otherwise altered reporting, recordkeeping or other compliance requirements for pole owners and attaching entities. For example, if the Commission were to adopt a uniform rate for all pole attachments used for broadband Internet access service, providers of such services might be required to record and report where such service is offered. If the Commission were to adopt a uniform rate for all pole attachments, such action could eliminate the need for cable television systems to record and report to utilities where they or their lessees offer telecommunications services. Changes to reporting, recordkeeping or other compliance requirements could either be new (e.g., if telecommunications carriers begin to record or report where they offer broadband Internet access service) or could reconfigure existing requirements (e.g., if cable television systems begin to record and report where they or their lessees offer broadband Internet access service, but cease to record and report where they or their lessees offer telecommunications services). If the Commission initiates regulation of the rates, terms, and conditions of pole attachment by incumbent LECs, such regulation could increase reporting, recordkeeping or other compliance requirements for pole owners and incumbent LECs where incumbent LECs attach to poles owned by other utilities.
53. Should the Commission adopt regulations concerning access to poles, ducts, conduits, and rights-of-way, such action could result in increased, reduced, or otherwise altered reporting, recordkeeping or other compliance requirements for pole owners, attaching entities, and users of ducts, conduits, and rights-of-way. In particular, if the Commission adopts rules governing specific techniques for pole and conduit modification, as opposed to resolution on a case-specific complaint basis, reporting, recordkeeping or other compliance requirements could change. Examples of specific topics where recordkeeping, reporting, or compliance requirements could change by virtue of Commission action include: (1) Searches and surveys of both poles and conduit, including information management; (2) performance of make-ready work, including timeliness, safety, capacity, and the use of boxing and extension arms; (3) the use of qualified third-party contract workers; (4) access to in-building ducts, conduit, and rights-of-way, including access to incumbent LEC central offices; or (5) practices relating to drop lines and poles.
54. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
55. The Commission tentatively concludes that it will promote broadband deployment and technological neutrality by requiring all categories of companies to pay the same pole attachment rate for all pole attachments used for broadband Internet access service, and the
56. None. Since the enactment of the 1996 Act, the Commission has encouraged disputing parties to participate in staff-supervised, pre-complaint mediation. Such mediation has proven to be very successful, including in pole attachment disputes. Certain rules regarding pole attachment complaints, however, may have had the unintended consequence of discouraging pre-complaint mediation. Thus, the Commission seeks comment on whether those rules should be amended or eliminated to facilitate mediation of disputes. In addition, under current Commission rules, an attacher may execute a pole attachment agreement with a utility, and then later file a complaint challenging the lawfulness of a provision of that agreement. The Commission seeks comment on whether it should adopt some contours to the rule, such as time-frames for raising written concerns about a provision of a pole attachment agreement.
57. Accordingly,
58.
59.
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment regarding whether to adopt procedural rules to govern the Commission's consideration of petitions to forbear from enforcing rules that are alleged to be unnecessary or inconsistent with the public interest (forbearance petitions). The Commission is responding to arguments that current procedures governing consideration of forbearance petitions are unfair, and to several proposed new rules that would include, for example, requiring forbearance petitions to be complete-as-filed, and assigning the burden of proof on parties that file forbearance petitions. The Commission intends both to solicit comment on the proposals before it and to encourage suggestions of other rules that the Commission should consider that would govern the form and content of forbearance petitions.
Comments are due March 7, 2008 and Reply Comments are due March 24, 2008. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before April 7, 2008.
You may submit comments, identified by WC Docket No. 07-267, by any of the following methods:
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• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Jonathan Reel, 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
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file Comments on or before March 7, 2008 and Reply Comments on or before March 24, 2008. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
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• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
You may submit comments, identified by WC Docket No. 07-267, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
1. In this Notice of Proposed Rulemaking (
2. Pursuant to section 10 of the Act, the Commission is required to forbear from any statutory provision or regulation if it determines that: (1) Enforcement of the regulation is not necessary to ensure that the telecommunications carrier's charges, practices, classifications, or regulations are just, reasonable, and not unjustly or unreasonably discriminatory; (2) enforcement of the regulation is not necessary to protect consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest. In determining whether forbearance is consistent with the public interest, the Commission also must consider whether forbearance from enforcing the provision or regulation will promote competitive market conditions. In addition, section 332(c)(1)(A) of the Act authorizes the Commission to “forbear” from applying the provisions of Title II to commercial mobile radio service (CMRS) providers, except for sections 201, 202, and 208, if certain criteria are satisfied. In particular, the Commission may exercise its forbearance authority pursuant to section 332 if it determines that: (1) Enforcement of the requirement is unnecessary to ensure that rates are just, reasonable, and non-discriminatory; (2) the requirement is not needed to protect consumers; and (3) forbearance is consistent with the public interest. The Commission also must consider whether any proposed forbearance from the requirements of Title II will enhance competition among CMRS providers.
3. The Commission seeks comment in general on the need for procedural rules to govern the Commission's consideration of petitions for forbearance pursuant to section 10 and/or section 332 (collectively, forbearance petitions), and with respect to the issues raised and rules proposed by the Petitioners in particular. For example, the Petitioners cite the need to apply Administrative Procedure Act (APA) notice-and-comment rules to forbearance petitions. The Petitioners state that to date the Commission's practice has been to provide interested parties with the opportunity to comment on a forbearance petition. Petitioners argue, however, that the Commission should institutionalize this practice to ensure that potentially-affected parties have a well-defined right to have their views taken into account. The Commission seeks comment both on the Petitioners' specific proposal and, more generally, on how the Commission should provide notice and an opportunity to comment in forbearance proceedings.
4. The Petitioners also request the adoption of rules governing the format and content of forbearance petitions, including a complete-as-filed requirement. In particular, the Petitioners contend that a complete-as-filed rule would facilitate Commission review and would help ensure that all interested parties have a full and fair opportunity to present their views to the Commission. The Petitioners note that the Commission has adopted similar requirements in other circumstances, such as section 271 proceedings and formal complaint proceedings subject to statutory deadlines. The Commission seeks comment on the Petitioners' specific proposal for complete-as-filed requirements, including whether the Commission should specify certain information necessary for a
5. In addition, the Petitioners propose that the Commission require a forbearance petitioner to separately demonstrate how it has satisfied each component of the forbearance standard. They assert that such a requirement is consistent with the Commission's pleading requirements in other contexts. The Petitioners contend that, in past practice, petitioners have failed to address each element of the section 10 standard individually, instead generally asserting that the forbearance criteria are satisfied with respect to all of the regulations and statutory provisions from which they are seeking forbearance. The Commission seeks comment on the Petitioners' specific proposal, including its relationship to the section 10 or section 332 forbearance standard and the Commission's forbearance analysis set forth in prior orders.
6. The Commission also seeks comment on the Petitioners' request that the Commission adopt particular rules addressing the scope and interpretation of protective orders in forbearance proceedings. The Petitioners suggest rules governing the timing of adoption of protective orders and the terms of access to, and use of, documents and information submitted pursuant to those protective orders. For example, the Petitioners suggest that all interested parties should be permitted to obtain copies of confidential and highly confidential documents. In addition, the Petitioners recommend that parties be allowed to use information submitted pursuant to protective order in one forbearance proceeding in other Commission forbearance proceedings in which a petitioning party seeks relief from the same rules and/or statutory provisions and that states be permitted
7. The Petitioners further seek rules establishing a timetable for Commission proceedings addressing forbearance petitions, which, among other things, incorporates a limited period for a petitioning party to cure minor defects in its petition without having to re-start the statutory clock, provides a specific vehicle for state commission input in the forbearance process; addresses motions to dismiss, and establishes a standard comment cycle; as well as a time limit on substantive ex parte submissions and other requirements. The Commission seeks comment on each of the proposals suggested by the Petitioners, as well as their general recommendation for the adoption of specific timetables for the Commission's review of forbearance petitions. The Commission also seeks comment on other proposals for steps the Commission could take to facilitate the participation of state commissions, as well as other parties, in forbearance proceedings.
8. The Petitioners propose that the Commission adopt additional requirements for petitions seeking forbearance from sections 251 and/or 271 of the Act. For example, the Petitioners propose that petitioners seeking forbearance from sections 251 or 271 must provide supporting data at the wire center level. The Petitioners further propose that the Commission adopt a rule inviting states to report to the Commission on the potential effects of sections 251 and/or 271 forbearance in their states.
9. The Petitioners also suggest certain procedural requirements governing the resolution of forbearance petitions, including a proposal that the Commission adopt a rule requiring the issuance of a written order on all forbearance petitions, including those petitions that previously have been “deemed granted.” The Commission seeks comment on that proposal.
10. To the extent that the Commission adopts procedural rules to govern forbearance petitions, the Petitioners request that those rules apply both to forbearance petitions filed in the future, as the well as forbearance petitions already pending before the Commission. The Commission seeks comment on the extent of the Commission's authority to adopt procedural rules governing both future forbearance petitions as well as those that already are pending before the Commission, particularly with respect to the procedural rules proposed by the Petitioners. The Commission also seeks comment on the propriety, as a policy matter, of extending particular procedural rules in such manner.
11. In recent years, the Commission has witnessed a significant increase in the number of petitions seeking forbearance submitted by telecommunications carriers that the Commission oversees. These petitions have had different results, such as petitions being approved, denied, withdrawn or deemed granted. In the course of Congressional oversight, some Members of Congress have raised concerns with how forbearance is used. Some companies have indicated serious concerns with the forbearance process, while others argue that it is an important tool for the Commission to eliminate rules, consistent with the public interest. The Commission therefore seeks comment on whether forbearance is an effective means for the Commission to make changes to its regulations. The Commission also seeks comment on whether forbearance is being utilized for the purposes intended by Congress. The Commission asks whether there are unintended consequences of forbearance, such as a focus on these petitions at the expense of other industry-wide proceedings, including burdens on stakeholders from forbearance proceedings, such as administrative and financial costs. The Commission asks whether there are additional burdens placed on stakeholders due to the fact that there is a statutory deadline on the completion of forbearance petitions. The Commission also seeks comment regarding the effects of having a company-specific petition drive agency decisions, rather than the Commission deciding to take industry-wide actions.
12. Finally, the Commission seeks comment on any other aspects of the Petition, as well as any other comments regarding the need for any other procedural rules to govern the Commission's consideration of forbearance petitions. The Commission also invites comment on the possible effect on small entities from adopting any of the Petitioners' proposed rules, or variations of those proposals set forth above. To the extent that the Commission were to adopt any procedural rules governing forbearance petitions proposed by the Petitioners or otherwise justified in the record, the Commission asks what would be the appropriate remedy for a violation of those rules.
13. The rulemaking this
14. As required by the Regulatory Flexibility Act of 1980, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth separately below. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA. Comments are due March 7, 2008 and Reply Comments are due March 24, 2008.
15. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
16. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared the present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities that might result from this
18. In this
19. The legal basis for any action that may be taken pursuant to this NPRM is contained in sections 1, 4(i), 4(j), 10, 303, 332 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 160, 303, 332, 403.
20. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
21. Small Businesses. Nationwide, there are a total of 22.4 million small businesses, according to SBA data.
22. Small Organizations. Nationwide, there are approximately 1.6 million small organizations.
23. Small Governmental Jurisdictions. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
24. Incumbent Local Exchange Carriers (ILECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed action.
25. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 94 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1,500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed action.
26. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 316 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 292 have 1,500 or fewer employees and 24 have more than 1,500 employees. Consequently, the Commission estimates that the majority
27. International Service Providers. There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts.
28. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.
29. The second category of Other Telecommunications “comprises establishments primarily engaged in (1) providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or (2) providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action.
30. Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small.
31. Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of “Paging” and “Cellular and Other Wireless Telecommunications.” Under both categories, the SBA deems a wireless business to be small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small.
32. Common Carrier Paging. As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census categories of “Cellular and Other Wireless Telecommunications.” Under this SBA category, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, U.S. Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the great majority of firms can be considered small.
33. In addition, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA has approved this definition. An auction of Metropolitan Economic Area (MEA) licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming small business status won 440 licenses. An auction of MEA and Economic Area (EA) licenses commenced on October 30, 2001, and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs commenced on May 13, 2003, and closed on May 28, 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses. Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 408 private and common carriers reported that they were engaged in the provision of either paging or “other mobile” services. Of these, we estimate that 589 are small, under the SBA-approved small business size standard. We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition.
34. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions. The Commission auctioned geographic area licenses in the WCS service. In the auction, which commenced on April 15, 1997 and closed on April 25, 1997, there were seven bidders that won 31 licenses that qualified as very small business entities,
35. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The SBA has developed a small business size standard for “Cellular and Other Wireless Telecommunications” services. Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Trends in Telephone Service data, 437 carriers reported that they were engaged in wireless telephony. We have estimated that 260 of these are small under the SBA small business size standard.
36. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders.
38. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. Subsequent events, concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 188 C Block licenses and 21 F Block licenses in Auction No. 58. There were 24 winning bidders for 217 licenses. Of the 24 winning bidders, 16 claimed small business status and won 156 licenses.
39. Narrowband Personal Communications Services. The Commission held an auction for Narrowband PCS licenses that commenced on July 25, 1994, and closed on July 29, 1994. A second auction commenced on October 26, 1994 and closed on November 8, 1994. For purposes of the first two Narrowband PCS auctions, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission awarded a total of 41 licenses, 11 of which were obtained by four small businesses. To ensure meaningful participation by small business entities in future auctions, the Commission adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards. A third auction commenced on October 3, 2001 and closed on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of these claimed status as a small or very small entity and won 311 licenses.
40. Lower 700 MHz Band Licenses. We adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. We have defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the lower 700 MHz Service has a third category of small business status that may be claimed for Metropolitan/Rural Service Area (MSA/RSA) licenses. The third category is “entrepreneur,” which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small size standards. An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were sold to 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, and closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status.
41. Upper 700 MHz Band Licenses. In
42. 700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, we adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area (MEA) licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were
43. Fixed Microwave Services. Fixed microwave services include common carrier, private operational-fixed, and broadcast auxiliary radio services. At present, there are approximately 22,015 common carrier fixed licensees and 61,670 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not created a size standard for a small business specifically with respect to fixed microwave services. For purposes of this analysis, the Commission uses the SBA small business size standard for the category “Cellular and Other Telecommunications,” which is 1,500 or fewer employees. The Commission does not have data specifying the number of these licensees that have no more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. Consequently, the Commission estimates that there are 22,015 or fewer common carrier fixed licensees and 61,670 or fewer private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services that may be small and may be affected by the rules and policies proposed herein. We note, however, that the common carrier microwave fixed licensee category includes some large entities.
44. 39 GHz Service. The Commission created a special small business size standard for 39 GHz licenses—an entity that has average gross revenues of $40 million or less in the three previous calendar years. An additional size standard for “very small business” is: An entity that, together with affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards.
The auction of the 2,173 39 GHz licenses began on April 12, 2000 and closed on May 8, 2000.
The 18 bidders who claimed small business status won 849 licenses.
45. Local Multipoint Distribution Service. Local Multipoint Distribution Service (LMDS) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. The auction of the 986 Local Multipoint Distribution Service (LMDS) licenses began on February 18, 1998 and closed on March 25, 1998. The Commission established a small business size standard for LMDS licenses as an entity that has average gross revenues of less than $40 million in the three previous calendar years. An additional small business size standard for “very small business” was added as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. The SBA has approved these small business size standards in the context of LMDS auctions. There were 93 winning bidders that qualified as small entities in the LMDS auctions. A total of 93 small and very small business bidders won approximately 277 A Block licenses and 387 B Block licenses. On March 27, 1999, the Commission re-auctioned 161 licenses; there were 32 small and very small businesses that won 119 licenses.
46. 218-219 MHz Service. The first auction of 218-219 MHz (previously referred to as the Interactive and Video Data Service or IVDS) spectrum resulted in 178 entities winning licenses for 594 Metropolitan Statistical Areas (MSAs). Of the 594 licenses, 567 were won by 167 entities qualifying as a small business. For that auction, we defined a small business as an entity that, together with its affiliates, has no more than a $6 million net worth and, after federal income taxes (excluding any carry over losses), has no more than $2 million in annual profits each year for the previous two years. In the 218-219 MHz Report and Order and Memorandum Opinion and Order, we defined a small business as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and their affiliates, has average annual gross revenues not exceeding $15 million for the preceding three years. A very small business is defined as an entity that, together with its affiliates and persons or entities that hold interests in such an entity and its affiliates, has average annual gross revenues not exceeding $3 million for the preceding three years. The SBA has approved of these definitions. A subsequent auction is not yet scheduled. Given the success of small businesses in the previous auction, and the prevalence of small businesses in the subscription television services and message communications industries, we assume for purposes of this analysis that in future auctions, many, and perhaps most, of the licenses may be awarded to small businesses.
47. Rural Radiotelephone Service. The Commission has not adopted a size standard for small businesses specific to the Rural Radiotelephone Service. A significant subset of the Rural Radiotelephone Service is the Basic Exchange Telephone Radio System (BETRS). In the present context, we will use the SBA's small business size standard applicable to “Cellular and Other Wireless Telecommunications,” i.e., an entity employing no more than 1,500 persons. There are approximately 1,000 licensees in the Rural Radiotelephone Service, and the Commission estimates that there are 1,000 or fewer small entity licensees in the Rural Radiotelephone Service that may be affected by the rules and policies proposed herein.
48. Incumbent 24 GHz Licensees. This analysis may affect incumbent licensees who were relocated to the 24 GHz band from the 18 GHz band, and applicants who wish to provide services in the 24 GHz band. The applicable SBA small business size standard is that of “Cellular and Other Wireless Telecommunications” companies. This category provides that such a company is small if it employs no more than 1,500 persons. For the census category of Paging, Census Bureau data for 2002 show that there were 807 firms in this category that operated for the entire year. Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small. For the census category of Cellular and Other Wireless Telecommunications, Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the majority of firms can, again, be considered small. These broader census data notwithstanding, we believe that there are only two licensees in the 24 GHz band that were relocated from the 18 GHz band, Teligent and TRW, Inc. It is our understanding that Teligent and its related companies have fewer than 1,500 employees, though this may change in the future. TRW is not a small entity. Thus, only one incumbent licensee in the 24 GHz band is a small business entity.
49. Future 24 GHz Licensees. With respect to new applicants in the 24 GHz band, we have defined “small business” as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the three preceding years not exceeding $15 million. “Very small business” in the 24 GHz band is defined as an entity that, together with controlling interests and affiliates, has average gross revenues not exceeding $3 million for the preceding
50. Should the Commission decide to adopt any procedural rules governing petitions for forbearance, the associated rules potentially could modify or impose new reporting or recordkeeping requirements. For example, we seek comment on the possible need for rules governing the form and content of forbearance petitions, such as “complete-as-filed” requirements and obligations for forbearance petitioners to demonstrate that they have satisfied each element of the forbearance standard. The Commission also seeks comment on the possible need or rules governing the scope and interpretation of protective orders in forbearance proceedings, including rules governing the submission of, access to, and use of information submitted pursuant to protective orders in forbearance proceedings. In addition, we seek comment on the need for rules establishing timetables for Commission proceedings addressing forbearance petitions, including requirements governing modification of forbearance petitions and processes for ex parte filings. We further seek comment on whether we should adopt procedural requirements governing petitions for reconsideration of forbearance decisions. The Commission also seeks comment on the need for any other procedural rules governing forbearance petitions, the scope of application of such rules, and the appropriate remedies for violation should the Commission adopt such rules. These proposals may impose additional reporting and recordkeeping requirements on entities. Also, we seek comment on the effects of any of these proposals on small entities. Entities, especially small businesses, are encouraged to quantify the costs and benefits or any reporting requirement that may be established in this proceeding.
51. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
52. The Commission's primary objective is to implement the “pro-competitive, deregulatory” framework established in sections 10 and 332 of the Act. We seek comment on the burdens, including those placed on small carriers, associated with related Commission rules and whether the Commission should adopt different requirements for small businesses.
53. None.
54. Accordingly,
55.
56.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, the National Marine Fisheries Service (NMFS), propose to designate critical habitat for elkhorn (
We are soliciting comments from the public on all aspects of the proposal, including our identification and consideration of the positive and negative economic, national security, and other relevant impacts of the proposed designation, and the areas we propose to exclude from the designation. A draft impacts report prepared pursuant to section 4(b)(2) of the ESA in support of this proposal is also available for public review and comment.
Comments on this proposal must be received by May 6, 2008. Public hearings will be held; see
You may submit comments, identified by the Regulation Identifier Number (RIN) 0648-AV35, by any of the following methods:
Electronic Submissions: Submit all electronic public comments via the
Mail: Assistant Regional Administrator, Protected Resources Division, NMFS, Southeast Regional Office, 263 13th Ave. South, St. Petersburg, FL 33701.
Facsimile (fax) : 727-824-5309.
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.
Jennifer Moore or Sarah Heberling, NMFS, at the address above or at 727-824-5312; or Marta Nammack, NMFS, at 301-713-1401.
On May 9, 2006, we listed elkhorn and staghorn corals as threatened under the ESA (71 FR 26852; May 9, 2006). At the time of listing, we also announced our intention to propose critical habitat for elkhorn and staghorn corals. We are proposing to designate critical habitat for both species through one rule; due to their similar life histories, distribution, threats, and conservation requirements, critical habitat for these coral species is overlapping.
The following discussion of the life history and reproductive biology of threatened corals is based on the best scientific data available, including the Atlantic
Elkhorn and staghorn corals were once the most abundant and most important species on Caribbean coral reefs in terms of accretion of reef structure. Relative to other corals, elkhorn and staghorn corals have high growth rates that have allowed reef growth to keep pace with past changes in sea level. Both species exhibit branching morphologies that provide important habitat for other reef organisms. Environmental influences (e.g., wave action, currents) result in morphological variation (e.g., length, shape of branches) in both species.
Staghorn coral is characterized by staghorn antler-like colonies with cylindrical, straight, or slightly curved branches. The diameter of staghorn coral branches ranges from 1 to 4 cm, and tissue color ranges from golden yellow to medium brown. The growing tips of staghorn coral tend to be lighter or lack color. The linear growth rate for staghorn coral has been reported to range from 3 to 11.5 cm/year. Today, staghorn coral colonies typically exist as isolated branches and small thickets, 0.5 to 1 m across in size, unlike the vast fields (thickets) of staghorn found commonly during the 1970s.
Elkhorn coral is the larger species of
Elkhorn and staghorn corals require relatively clear, well-circulated water and are almost entirely dependent upon sunlight for nourishment. Unlike other coral species, neither acroporid species is likely to compensate for long-term reductions in water clarity with alternate food sources, such as zooplankton and suspended particulate matter. Typical water temperatures in which
In elkhorn and staghorn corals, fertilization and development are exclusively external. Embryonic development culminates with the development of planktonic larvae called planulae. Little is known concerning the settlement patterns of planula of elkhorn and staghorn corals. In general, upon proper stimulation, coral larvae, whether released from parental colonies or developed in the water column external to the parental colonies (like
Coral planula larvae experience considerable mortality (90 percent or
Studies of
Few data on the genetic population structure of elkhorn and staghorn corals exist; however, due to recent advances in technology, the genetic population structure of the current, depleted population is beginning to be characterized. Baums,
Vollmer and Palumbi (2007) examined multilocus sequence data from 276 colonies of staghorn coral spread across 22 populations from 9 regions in the Caribbean, Florida, and the Bahamas. Their data were consistent with the Western-Eastern Caribbean subdivision observed in elkhorn coral populations by Baums,
Both acroporid population studies suggest that no population is more or less significant to the status of the species. Staghorn coral populations on one reef exhibit limited ability to seed another population separated by large distances. Elkhorn coral populations are genetically related over larger geographic distances; however, because sexual recruitment levels are extremely low, re-seeding potential is also minimal. This regional population structure suggests that conservation should be implemented at local to regional scales because relying on long-distance larval dispersal as a means of recovery may be unreliable and infeasible. Therefore, protecting source populations, in relatively close proximity to each other (<500 km), is likely the more effective conservation alternative (Vollmer and Palumbi, 2007).
Elkhorn and staghorn corals, like most coral species, also reproduce asexually. Asexual reproduction involves fragmentation, wherein colony pieces or fragments break from a larger colony and re-attach to hard, consolidated substrate to form a new colony. Reattachment occurs when: (1) Live coral tissue on the fragment overgrows suitable substrate where it touches after falling; or (2) encrusting organisms settle on the dead basal areas of the fragment and cement it to the adjacent substrate (Tunnicliffe, 1981). Fragmentation results in multiple colonies (ramets) that are genetically identical, while sexual reproduction results in the creation of new genotypes (genets). Fragmentation is the most common means of forming new elkhorn and staghorn coral colonies in most populations and plays a major role in maintaining local populations when sexual recruitment is limited. The larger size of fragments compared to planulae may result in higher survivorship after recruitment (Jackson, 1977, as cited by Lirman, 2000). Also unlike sexual reproduction, which is restricted seasonally for elkhorn coral (Szmant, 1986, as cited by Lirman, 2000), fragmentation can take place year-round.
Critical habitat is defined by section 3 of the ESA (and further by 50 CFR 424.02(d)) as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.” This definition provides a step-wise approach to identifying areas that may be designated as critical habitat for listed corals.
The best scientific data available show the current geographical area occupied by both elkhorn and staghorn corals has remained unchanged from their historical ranges. In other words, there is no evidence of range constriction for either species. “Geographical areas occupied” in the definition of critical habitat is interpreted to mean the current range of the species and not every discrete location on which individuals of the species physically are located (45 FR 13011; February 27, 1980). In general, elkhorn and staghorn corals have the same distribution, with few exceptions, and are widely distributed throughout the Caribbean.
In Southeast Florida, staghorn coral has been documented along the east coast as far north as Palm Beach County in deeper (16 to 30 m) water (Goldberg, 1973) and is distributed south and west throughout the coral and hardbottom habitats of the Florida Keys (Jaap, 1984), through Tortugas Bank. Elkhorn coral has been reported as far north as Broward and Miami-Dade Counties, with significant reef development and framework construction by this species beginning at Ball Buoy Reef in Biscayne National Park, extending discontinuously southward to the Dry Tortugas.
In Puerto Rico, elkhorn and staghorn corals have been reported in patchy abundance around the main island and isolated offshore locations. In the late 1970s, both elkhorn and staghorn corals occurred in dense and well developed thickets on many reefs off the northeast, east, south, west and northwest coast, and also the offshore islands of Mona, Vieques and Culebra (Weil,
The U.S.V.I. also supports populations of elkhorn and staghorn corals, particularly at Buck Island Reef National Monument. St. Croix has coral reef and colonized hardbottom surrounding the entire island. Data from the 1980's indicate that the species were present along the north, eastern, and western shores at that time. The GIS data we compiled indicate the presence of elkhorn and staghorn currently along the north, northeastern, south, and southeastern shores of St. Croix. Monitoring data are incomplete, and it is possible that unrecorded colonies are present along the western, northwestern, or southwestern shores. For the islands of St. Thomas and St. John, there are limited GIS presence data available for elkhorn and staghorn corals. However, Grober-Dunsmore,
Navassa Island is a small, uninhabited, oceanic island approximately 50 km off the southwest tip of Haiti managed by U.S. Fish and Wildlife Service (FWS) as one component of the Caribbean Islands National Wildlife Refuge (NWR). Both acroporid species are known from Navassa, with elkhorn apparently increasing in abundance and staghorn rare (Miller and Gerstner, 2002).
Last, there are two known colonies of elkhorn at the Flower Garden Banks National Marine Sanctuary (FGBNMS), located 100 mi (161 km) off the coast of Texas in the Gulf of Mexico. The FGBNMS is a group of three areas of salt domes that rise to approximately 15 m water depth and are surrounded by depths from 60 to 120 m. The FGBNMS is regularly surveyed, and the two known colonies, which were only recently discovered and are considered to be a potential range expansion, are constantly monitored.
Our regulations at 50 CFR 424.12(h) state: “Critical habitat shall not be designated within foreign countries or in other areas outside of United States jurisdiction.” Although the geographical area occupied by elkhorn and staghorn corals includes coastal waters of many Caribbean and Central and South American nations, we are not proposing these areas for designation. The geographical area occupied by listed coral species which is within the jurisdiction of the United States is therefore limited to four counties in the State of Florida (Palm Beach County, Broward County, Miami-Dade County, and Monroe County), FGBNMS, and the U.S. territories of Puerto Rico, U.S.V.I, and Navassa Island.
Within the geographical area occupied, critical habitat consists of specific areas on which are found those physical or biological features essential to the conservation of the species (hereafter also referred to as essential features or “Primary Constituent Elements” or “PCEs”). Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean: “To use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Further, our regulations at 50 CFR 424.12(b) for designating critical habitat state that physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection may include, but are not limited to: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally, (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations state that we shall focus on essential features within the specific areas considered for designation.
As stated in the Atlantic Acropora Status Review Report (Acropora Biological Review Team, 2005),
Currently, sexual recruitment of elkhorn and staghorn corals is limited in some areas and absent in most. Compounding the difficulty of documenting sexual recruitment is the difficulty of visually distinguishing some sexual recruits from asexual recruits (Miller,
Elkhorn and staghorn corals, like most corals, require hard, consolidated substrate (i.e., attached, dead coral skeleton or hardbottom) for their larvae to settle or fragments to reattach. The type of substrate available directly influences settlement success and fragment survivorship. Lirman (2000) demonstrated this in a transplant experiment using elkhorn coral fragments created by a ship grounding. Fifty fragments were collected within 24 hours of fragmentation and assigned to one of the following four types of substrate: (1) Hardbottom (consolidated carbonate framework), (2) rubble (loose, dead pieces of elkhorn and staghorn corals), (3) sand, and (4) live coral. The results showed that the survivorship of transplanted fragments was significantly affected by the type of substrate, with fragment mortality being the greatest for those transplanted to sandy bottom (58 percent loss within the first month and 71 percent after 4 months). Fragments placed on live adult elkhorn coral colonies fused to the underlying tissue and did not experience any tissue loss; and fragments placed on rubble and hardbottom substrates showed high survivorship.
Unlike fragments, coral larvae cannot attach to living coral (Connell,
The persistence of fleshy macroalgae under reduced grazing regimes has impacts on CCA growth, which may reduce settlement of coral larvae as CCA is thought to provide chemical cues for settlement. Most CCA are susceptible to fouling by fleshy algae, particularly when herbivores are absent (Steneck, 1986). Patterns observed in St. Croix, U.S.V.I., also indicate a strong positive correlation between CCA abundance and herbivory (Steneck, 1997). A study in which Miller,
Several studies show that coral recruitment tends to be greater when algal biomass is low (Rogers,
Sediments enter the reef environment through many processes that are natural or anthropogenic in origin, including erosion of coastline, resuspension of bottom sediments, terrestrial run-off, and nearshore dredging for coastal construction projects and navigation
Based on the key conservation objective we have identified to date, the natural history of elkhorn and staghorn corals, and their habitat needs, the physical or biological feature of elkhorn and staghorn corals' habitat essential to their conservation is substrate of suitable quality and availability, in water depths from the mean high water (MHW) line to 30 m, to support successful larval settlement, recruitment, and reattachment of fragments. For purposes of this definition, “substrate of suitable quality and availability” means consolidated hardbottom or dead coral skeleton that is free from fleshy macroalgae cover and sediment cover. This feature is essential to the conservation of these two species due to the extremely limited recruitment currently being observed.
We determined that no other environmental features are appropriate or necessary for defining critical habitat for the two corals. Other than the substrate PCE, we cannot conclude that any other sufficiently definable feature of the environment is essential to the corals' conservation. Other features of the corals' environment, such as water temperature, are more appropriately viewed as sources of impacts or stressors that can harm the corals, rather than habitat features that provide a conservation function. Therefore, these stressors would not be analyzed as factors that may contribute to a determination whether the corals' critical habitat is likely to be destroyed or adversely modified. Some environmental features are also subsumed within the definition of the substrate PCE; for instance, substrate free from macroalgal cover would encompass water quality sufficiently free of nutrients.
The definition of critical habitat further instructs us to identify specific areas on which are found the physical or biological features essential to the species' conservation. Our regulations state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area, and referencing each area by the State, county, or other local governmental unit in which it is located (50 CFR 424.12(c)). As discussed below, we determined that specific areas in FGBNMS and Navassa National Wildlife Refuge that contain the PCE do not otherwise meet the definition of critical habitat. Hence, in this section we only describe our identification of the specific areas we are proposing to include in this designation.
In addition to information obtained from the public, we partnered with SEFSC, NOAA Biogeography Team, and U.S. Geological Survey to obtain GIS and remote sensing data (e.g., benthic habitat data, water depth) to compile existing data to identify and map areas that may contain the identified PCE. The following are the major datasets upon which we relied. NOAA's National Ocean Service (NOS) and the Florida Fish and Wildlife Research Institute completed The Benthic Habitat Mapping of Florida Coral Reef Ecosystems using a series of 450 aerial photographs collected in 1991-1992. For this mapping effort, coral ecosystem ecologists outlined the boundaries of specific habitat types by interpreting color patterns on the photographs. Benthic habitats were classified into four major categories—corals, seagrasses, hardbottom, and bare substrate—and 24 subcategories, such as sparse seagrass and patch reef. Each habitat type was groundtruthed in the field by divers to validate the photo-interpretation of the aerial photography. Habitat boundaries were georeferenced and digitized to create computer maps. A similar method was followed by NOS using 1999 aerial imagery in developing the Benthic Habitat Mapping of Puerto Rico and the U.S.V.I.
Using GIS software, we extracted all areas that could be considered potential recruitment habitat, including hardbottom and coral. The benthic habitat information assisted in identifying any major gaps in the distribution of the substrate PCE. Given uncertainties in the age and resolution of the data, we were unable to identify smaller, discrete specific areas that contained the PCE rather than large, continuous areas. Thus, we concluded that, based upon the best available information, although the PCE is unevenly dispersed throughout the ranges of the species, no major gaps existed in the distribution. We further limited the specific areas to the maximum depth of occurrence of the two corals (i.e., 30 m). The 30-m contour was extracted from the National Geophysical Data Center Coastal Relief Model for Puerto Rico & Virgin Islands, and Florida. Because Puerto Rico and the U.S.V.I. are islands, the contours yielded continuous closed polygons. However, because the two species only occur off specific counties in Florida, we used additional boundaries to close the polygons. The Florida Area consists of all waters contained by the boundary beginning at the MHW line at the north boundary of Palm Beach County; then due east to the 30-m contour; then following the 30-m contour to the intersection with the FKNMS boundary northeast of the Dry Tortugas; then following the FKNMS boundary to the intersection with the COLREGS line (see 33 CFR 80.727, 730, 735, and 740) for Florida Bay; then following the COLREGS line southeast to the intersection with Long Key; then following the COLREGS line and MHW line returning to the beginning point. The COLREGS line separates inland waters from marine waters. Also included are the waters in two shoals southwest of the Dry Tortugas bounded by the 30-m contour.
Using the above procedure and consistent with our regulations (50 CFR 424.12(c)), we identified four “specific areas” and a few small adjacent areas (separated from main areas by water depth greater than 30 m) within the geographical area occupied by the species, at the time of listing, that contain the PCE. These areas comprise all waters in the depths of 30 m and shallower to the MHW or COLREG line off: (1) Palm Beach, Broward, Miami-Dade, and Monroe Counties, including the Marquesas Keys and the Dry Tortugas, Florida; (2) Puerto Rico and associated Islands; (3) St. John/St. Thomas, U.S.V.I.; and (4) St. Croix, U.S.V.I.) (see maps). Within these specific areas, the PCE consists of consolidated hardbottom or dead coral skeleton that are free from fleshy macroalgae cover and sediment cover. The PCE can be found unevenly dispersed throughout these four areas due to trends in macroalgae coverage, and naturally occurring unconsolidated sediment and seagrasses dispersed within the reef ecosystem. A larger
The PCE is not likely to be present in natural sites covered with loose sediment, fleshy macroalgal covered hardbottom, or seagrasses. Additionally, existing man-made structures such as aids-to-navigation (ATONs), artificial reefs, boat ramps, docks, pilings, maintained channels or marinas do not provide the PCE that is essential to the species' conservation. Substrate within the proposed critical habitat boundaries that do not contain the PCE are not part of the designation. Federal actions, or the effects thereof, limited to these areas would not trigger section 7 consultation under the ESA, unless they may affect the species and/or the PCE in adjacent critical habitat. As discussed here and in the supporting impacts analysis, given the precise definition of the proposed PCE, determining whether an action may affect the feature can be accomplished without entering into an ESA section 7 consultation.
ESA section 3(5)(A)(ii) further defines critical habitat to include specific areas outside the geographical area occupied if the areas are determined by the Secretary to be essential for the conservation of the species. Regulations at 50 CFR 424.12(e) specify that we shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. At the present time, the range of these species has not been constricted, and we have not identified any areas outside the geographical area occupied by the species that are essential for their conservation. Therefore, we are not proposing to designate any unoccupied areas for elkhorn and staghorn corals.
Specific areas within the geographical area occupied by a species may be designated as critical habitat only if they contain physical or biological features that “may require special management considerations or protection.” A few courts have interpreted aspects of this statutory requirement, and the plain language aids in its interpretation. For instance, the language clearly indicates the features, not the specific area containing the features, are the focus of the “may require” provision. Use of the disjunctive “or” also suggests the need to give distinct meaning to the terms “special management considerations” and “protection.” Generally speaking, “protection” suggests actions to address a negative impact or threat of a negative impact. “Management” seems plainly broader than protection, and could include active manipulation of a feature or aspects of the environment. Two Federal district courts, focusing on the term “may,” ruled that features can meet this provision based on either present requirements for special management considerations or protections, or on possible future requirements. See,
Based on the above, we evaluated whether the PCE proposed in this document may require special management considerations or protections by evaluating four criteria:
(a) Whether there is presently a need to manage the feature;
(b) Whether there is the possibility of a need to manage the feature;
(c) Whether there is presently a negative impact on the feature; or
(d) Whether there is the possibility of a negative impact on the feature.
In evaluating present or possible future management needs for the PCE, we recognized that the feature in its present condition must be the basis for a finding that it is essential to the corals' conservation. In addition, the needs for management evaluated in (a) and (b) were limited to managing the feature for the conservation of the species. In evaluating whether the PCE meets either criterion (c) or (d), we evaluated direct and indirect negative impacts from any source (e.g., human or natural). However, we only considered the criteria to be met if impacts affect or have the potential to affect the aspect of the feature that makes it essential to the conservation of the species. We then evaluated whether the PCE met the “may require” provision separately for each of the four “specific areas” proposed for designation, as well as Navassa Island and FGBNMS (discussed later), as management and protection requirements can vary from area to area based on such factors as the legal authorities applicable to areas and the location of the area within the occupied range.
Suitable habitat available for larval settlement and recruitment, and asexual fragment reattachment, of these coral species, is particularly susceptible to impacts from human activity because of the shallow water depth range (MHW to 30 m) in which elkhorn and staghorn corals commonly grow. The proximity of this habitat to coastal areas subject this feature to impacts from multiple activities including, but not limited to, dredging and disposal activities, stormwater run-off, coastal and maritime construction, land development, wastewater and sewage outflow discharges, point and non-point source pollutant discharges, fishing, placement of large vessel anchorages, and installation of submerged pipelines or cables. The impacts from these activities, combined with those from natural factors (e.g., major storm events), significantly affect the quality and quantity of available substrate for these threatened species to successfully sexually and asexually reproduce. We concluded that the PCE is currently and will likely continue to be negatively impacted by some or all of these factors in all four specific areas.
Overfishing of herbivorous fishes and the mass die-off of long-spined sea urchin
An additional factor contributing to the dominance of fleshy macroalgae as major space-occupiers on many Caribbean coral reefs is nutrient enrichment. Nutrients are added to coral reefs from both point sources (readily identifiable inputs where pollutants are discharged to receiving surface waters from a pipe or drain) and non-point sources (inputs that occur over a wide area and are associated with particular land uses). Anthropogenic sources of nutrients include sewage, stormwater and agricultural runoff, river discharge, and groundwater; however, natural oceanographic sources like internal waves and upwelling also distribute nutrients on coral reefs. Coral reefs have been considered to be generally nutrient-limited systems, meaning that levels of accessible nitrogen and phosphorus limit the rates of macroalgae growth. When nutrient levels are raised in such a system, growth rates of fleshy macroalgae can be expected to increase, and this can yield imbalance and changes in community structure.
The anthropogenic source routes for nutrients may also bring additional sediments into the coral reef environment. Sources of sediment include erosion of coastline, resuspension of bottom sediments, terrestrial run-off (following clearing of mangroves and deforestation of hillsides), beach renourishment, and nearshore dredging and disposal for coastal construction projects and for navigation purposes. Sediment deposition and accumulation affect the overall amount of suitable substrate available for larval settlement, recruitment, and fragment reattachment (Babcock and Davies, 1991), and both sediment composition and deposition affect the survival of juvenile corals (Fabricius,
The major category of habitat-related activities that may affect the PCE for the two listed corals is water quality management. Activities within this category have the potential to negatively affect the PCE for elkhorn and staghorn corals by altering the quality and availability of suitable substrate for larval settlement, recruitment, and fragment reattachment. Nutrient enrichment, via sewage, stormwater and agricultural runoff, river discharge, and groundwater, is a major factor contributing to this shift in benthic community structure and preemption of available substrate suitable for larval settlement, recruitment, and asexual fragment reattachment. Additionally, sedimentation resulting from land-use practices and from dredging and disposal activities in all four specific areas reduces the overall availability and quality of substrate suitable for successful sexual and asexual reproduction by the two acroporid corals. Thus, the PCE currently needs and will likely continue to need special management or protection.
Although they fall within U.S. jurisdiction and may contain the PCE, we are not proposing to include FGBNMS and Navassa National Wildlife Refuge in our critical habitat designation, because we do not believe the PCE in these areas requires special management considerations or protections. Both FGBNMS and Navassa Island are remote marine protected areas and are not currently exposed to the negative impacts and conditions needing management discussed for the other areas above. Additionally, based on available information, we do not expect the PCE found within these two protected areas to experience negative impacts from human or natural sources that would diminish the feature's conservation value to the two coral species.
Section 4(b)(8) of the ESA requires that we describe briefly and evaluate, in any proposed or final regulation to designate critical habitat, those activities that may destroy or adversely modify such habitat or that may be affected by such designation. A wide variety of activities may affect critical habitat and, when carried out, funded, or authorized by a Federal agency, will require an ESA section 7 consultation. Such activities include, but are not limited to, dredging and disposal, beach renourishment, large vessel anchorages, submarine cable/pipeline installation and repair, oil and gas exploration, pollutant discharge, and oil spill prevention and response. Notably, all the activities identified that may affect the critical habitat may also affect the species themselves, if present within the action area of a proposed Federal action.
We believe this proposed critical habitat designation will provide Federal agencies, private entities, and the public with clear notification of critical habitat for elkhorn and staghorn corals and the boundaries of the habitat. This designation will allow Federal agencies and others to evaluate the potential effects of their activities on critical habitat to determine if ESA section 7 consultation with NMFS is needed given the specific definition of the PCE above. Consistent with recent agency guidance on conducting adverse modification analyses (NMFS, 2005), we will apply the statutory provisions of the ESA, including those in section 3 that define “critical habitat” and “conservation,” to determine whether a proposed future action might result in the destruction or adverse modification of critical habitat.
Section 4(a)(3)(B) prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP), if we determine that such a plan provides a benefit to the coral species (16 U.S.C. 1533(a)(3)(B)). The legislative history to this provision explains:
• “The conferees would expect the [Secretary] to assess an INRMP's potential contribution to species conservation, giving due regard to those habitat protection, maintenance, and improvement projects and other related activities specified in the plan that address the particular conservation and protection needs of the species for which critical habitat would otherwise be proposed. Consistent with current practice, the Secretary would establish criteria that would be used to determine if an INRMP benefits the listed species for which critical habitat would be proposed” (Conference Committee report, 149 Cong. Rec. H. 10563; November 6, 2003).
No areas within the specific areas being proposed for designation are covered by relevant INRMPs. Although Naval Air Station Key West (NASKW) is within the specific areas being proposed for designation, the current INRMP was adopted in 2001 and does not address listed corals, nor corals in general. NASKW is in the process of updating the 2001 INRMP and has issued a draft of the document to NMFS for review. If the draft INRMP were to become final and provide a benefit to the two corals as described above, then we would not designate critical habitat within the boundaries covered by the INRMP. NASKW is, however, being proposed for exclusion pursuant to section 4(b)(2), as explained below.
The foregoing discussion described the specific areas within U.S. jurisdiction that fall within the ESA section 3(5) definition of critical habitat in that they contain the physical feature
The analysis of impacts below summarizes the comprehensive analysis contained in our Draft Section 4(b)(2) Report, first by considering economic, national security, and other relevant impacts that we projected would result from including each of the four specific areas in the proposed critical habitat designation. This consideration informed our decision on whether to exercise our discretion to propose excluding particular areas from the designation. Both positive and negative impacts were identified and considered (these terms are used interchangeably with benefits and costs, respectively). Impacts were evaluated in quantitative terms where feasible, but qualitative appraisals were used where that is more appropriate to particular impacts.
The ESA does not define what “particular areas” means in the context of section 4(b)(2), or the relationship of particular areas to “specific areas” that meet the statute's definition of critical habitat. As there was no biological basis to subdivide the four specific critical habitat areas into smaller units, we treated these areas as the “particular areas” for our initial consideration of impacts of designation.
The primary impacts of a critical habitat designation result from the ESA section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat. Determining these impacts is complicated by the fact that section 7(a)(2) also requires that Federal agencies ensure their actions are not likely to jeopardize the species' continued existence. One incremental impact of designation is the extent to which Federal agencies modify their proposed actions to ensure they are not likely to destroy or adversely modify the critical habitat beyond any modifications they would make because of listing and the jeopardy requirement. When a modification would be required due to impacts to both the species and critical habitat, the impact of the designation may be co-extensive with the ESA listing of the species. Additional impacts of designation include state and local protections that may be triggered as a result of designation, and positive impacts that may arise from conservation of the species and their habitat, and education of the public to the importance of an area for species conservation.
A Draft ESA 4(b)(2) Report describes the impacts analysis in detail (NMFS, 2007). The report describes the projected future Federal activities that would trigger section 7 consultation requirements because they may affect the PCE. Additionally, the report describes the project modifications we identified that may reduce impacts to the PCE, and states whether the modifications are more likely to be solely a result of the critical habitat designation or co-extensive with another regulation, including the ESA listing of the species. The report also identifies the potential national security and other relevant impacts that may arise due to the proposed critical habitat designation. This report is available on NMFS' Southeast Region Web site at
As discussed above, economic impacts of the critical habitat designation result through implementation of section 7 of the ESA in consultations with Federal agencies to ensure their proposed actions are not likely to destroy or adversely modify critical habitat. These economic impacts may include both administrative and project modification costs; economic impacts that may be associated with the conservation benefits of the designation are described later.
Because elkhorn and staghorn corals are newly listed and we lack a lengthy consultation history for these species, we needed to make assumptions about the types of future Federal activities that might require section 7 consultation under the ESA. We examined the consultation record over the last 10 years, as compiled in our Public Consultation Tracking System (PCTS) database, to identify types of Federal activities that have the potential to adversely affect elkhorn or staghorn coral critical habitat. We request Federal action agencies to provide us with information on future consultations if our assumptions omitted any future actions likely to affect the proposed critical habitat. We identified 13 categories of activities conducted by 7 Federal action agencies: Airport repair and construction; anchorages; construction of new aids to navigation; beach nourishment and bank stabilization; coastal construction; discharges to navigable waters; dredging and disposal; fishery management; maintenance construction; maintenance dredging and disposal; military installation management; resource management; and development or modification of water quality standards. Notably, all categories of projected future actions that may trigger consultation because they have the potential to adversely affect the PCE also have the potential to adversely affect the corals themselves. There are no categories of activities that would trigger consultation on the basis of the proposed critical habitat designation alone. However, it is feasible that a specific future project within a category of activity would have impacts on critical habitat but not on the species. Because the total surface area covered by the proposed PCE (although unquantified) is far larger than the total surface area on which the corals (again unquantified) currently occur, it is likely there will be more consultations with impacts on critical habitat than on the species. Nonetheless, it was impossible to determine how many of those projects there may be over the 10-year horizon of our impacts analysis.
To avoid underestimating impacts, we assumed that all of the projected future actions in these categories will require formal consultations for estimation of both administrative and project modification costs. This assumption likely results in an overestimation of the number of future formal consultations.
We next considered the range of modifications we might seek for these activities to avoid adverse modification of elkhorn and staghorn coral critical habitat. We identified 13 potential project modifications that we may require to reduce impacts to the PCE through section 7 consultation under the ESA. To be conservative in estimating impacts, we assumed that project modifications would be required to address adverse effects from all projected future agency actions requiring consultation. Although we made the assumption that all potential project modifications would be required by NMFS, not all of the modifications
We also identified whether a project modification would be required due to the listing of the species or another existing regulatory authority to determine if the cost of the project modification was likely to be co-extensive or incremental. Several project modifications (i.e., conditions monitoring, diver education, horizontal directional drilling (HDD), tunneling or anchoring cables and pipelines, sediment control measures, fishing gear maintenance, and water quality standard modification) were characterized as fully co-extensive with the listing of the species or other existing statutory or regulatory authority, because the nature of the actions that would require these modifications typically involve a large action area likely to include both the PCE and either the listed corals or other coral reef resources. Other project modifications (i.e., project relocation, diver assisted anchoring or mooring buoy use, global positioning system (GPS) and dynamic positioning vessel (DPV) protocol, sand bypassing/backpassing, shoreline protection measures, and use of upland or artificial sources of sand) were characterized as partially co-extensive with the listing of the species or other existing statutory or regulatory authority such as the Clean Water Act because of the typically smaller action area of projects that would involve these modifications, and thus the greater likelihood that specific projects would impact only the PCE. We did not identify any project modification that we expected would result in fully incremental costs due to the critical habitat designation.
Table 1 provides a summary of the estimated costs, where possible, of individual project modifications. The Draft ESA 4(b)(2) Report provides a detailed description of each project modification, methods of determining estimated costs, and actions for which it may be prescribed. Although we have a projection of the number of future formal consultations (albeit an overestimation), the lack of information on specific project designs limits our ability to forecast the exact type and amount of modifications required. Thus, while the costs associated with types of project modifications were characterized, no total cost of this proposed rule could be quantified.
In addition to project modification costs, administrative costs of consultation will be incurred by Federal agencies and project permittees or grantees as a result of this designation. Estimates of the cost of an individual consultation were developed from a review and analysis of the consultation database, as previously discussed, and from the estimated ESA section 7 consultation costs identified in the Economic Analysis of Critical Habitat Designation for the Gulf Sturgeon (IEc, 2003) inflated to 2006 dollars (the 2007 inflation coefficient was not known at the time of drafting). Cost figures are based on an average level of effort for consultations of low or high complexity (based on NMFS and other Federal agency information), multiplied by the appropriate labor rates for NMFS and other Federal agency staff. Although the PCE occurs in greater abundance than the corals and thus the probability that a consultation would be required because of the critical habitat designation is higher than for the listing of corals, we were unable to estimate the number of consultations that may be required on the basis of critical habitat alone. Therefore, we present the estimated maximum incremental administrative costs as averaging $827,220 to $1,633,229, annually.
Previous critical habitat designations have recognized that impacts to national security result if a designation would trigger future ESA section 7 consultations because a proposed military activity “may affect” the physical or biological feature(s) essential to the listed species' conservation. Anticipated interference with mission-essential training or testing or unit readiness, either through delays caused by the consultation process or through expected requirements to modify the action to prevent adverse modification of critical habitat, has been identified as a negative impact of critical habitat designations. (See, e.g., Proposed Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover, 71 FR 34571, June 15, 2006, at 34583; and Proposed Designation of Critical Habitat for Southern Resident Killer Whales; 69 FR 75608, Dec. 17, 2004, at 75633.)
Past designations have also recognized that whether national
As discussed above, based on the past 10-year consultation history, it is likely that consultations with respect to activities on DOD facilities will be triggered as a result of the proposed critical habitat designation. Further, it is possible that some consultations will be due to the presence of the PCE alone, and that adverse modification of the PCE could result, thus requiring a reasonable and prudent alternative to the proposed DOD activity.
On May 22, 2007, we sent a letter to DOD requesting information on national security impacts of the proposed critical habitat designation, and received a response from the Department of the Navy (Navy). Further discussions and correspondence identified Naval Air Station Key West (NASKW) as the only installation potentially affected by the critical habitat designation. NASKW resides solely within the Florida specific area of the proposed critical habitat (Area 1). No other DOD installations were identified as likely to be impacted by this proposed designation.
The Navy identified several specific activities within NASKW and associated annexes that would be adversely impacted by requirements to modify the actions to avoid destroying or adversely modifying critical habitat. These activities include: military training and readiness; access to, management of, and maintenance of piers, harbors, and waterfront instrumentation; and support for refueling or docking of Federal vessels. The Navy considers nearshore areas to be under its control pursuant to its navigable servitude for purposes of national defense under the Submerged Lands Act (43 U.S.C. 1314). Additionally, the Navy states that NASKW and associated annexes (including bombing and strafing areas) provide training necessary to national security and identified the types of military activities that take place in the areas. The Navy concluded that critical habitat designation at NASKW would likely impact national security by diminishing military readiness through the requirement to consult on their activities within critical habitat in addition to the requirement to consult on the two listed corals. We discuss our exclusion analysis based on these national security impacts below.
Past critical habitat designations have identified two broad categories of other relevant impacts: Conservation benefits, both to the species and to society as a result of designation, and impacts on governmental or private entities that are implementing existing management plans that provide benefits to the listed species. Our Draft Section 4(b)(2) Report discusses conservation benefits of designating the four specific areas to the corals, and the benefits of conserving the corals to society, in both ecological and economic metrics.
As summarized in the Draft 4(b)(2) Report, elkhorn and staghorn corals currently provide a range of important uses and services to society. Because the features that form the basis of the critical habitat are essential to, and thus contribute to, successful conservation of the two listed corals, protection of critical habitat from destruction or adverse modification may, at minimum, prevent further loss of the benefits currently provided by the species. Moreover, because the PCE is essential to increasing the abundance of elkhorn and staghorn corals, its successful protection may actually contribute to an increase in the benefits of these species to society in the future. While we cannot quantify nor monetize the benefits, we believe they are not negligible and would be an incremental benefit of this designation. However, although the PCE is essential to the corals' conservation, critical habitat designation alone will not bring about their recovery. The benefits of conserving elkhorn and staghorn coral are, and will continue to be, the result of several laws and regulations.
Elkhorn and staghorn corals are two of the major reef-building corals in the Caribbean. Over the last 5,000 years, they have made a major contribution to the structure that makes up the Caribbean reef system. The structural and ecological roles of Atlantic acroporids in the Caribbean are unique and cannot be filled by other reef-building corals in terms of accretion rates and the formation of structurally complex reefs. At current levels of acroporid abundance, this ecosystem function is significantly reduced. Due to elkhorn and staghorn corals' extremely reduced abundance, it is likely that Caribbean reefs are in an erosional, rather than accretional, state.
In addition to the important functions of reef building and reef maintenance provided by elkhorn and staghorn corals, these species themselves serve as fish habitat (Ogden and Ehrlich, 1977; Appeldoorn,
Another benefit of elkhorn and staghorn corals is provided in the form of shoreline protection. Again, due to their function as major reef building species, elkhorn and staghorn corals provide shoreline protection by dissipating the force of waves, which are a major source of erosion and loss of land (NOAA, 2005). For example, in 2005, the coast of Mexico north of Cancun was impacted by Hurricane Wilma; wave height recorded just offshore of the barrier reef was 11 m while wave height at the coast was observed to be 3 m (B. van Tussenbroek, pers. comm.). Damage to coastal structures would have been significantly greater had the 11-m waves not been dissipated by the reef.
Lastly, numerous studies have identified the economic value of coral reefs to tourism and recreation. Of particular relevance, Johns,
Many previous designations have evaluated the impacts of designation on relationships with, or the efforts of, private and public entities that are involved in management or conservation efforts benefitting listed species. Similar to national security impacts, impacts on entities responsible for natural resource management or conservation plans that benefit listed
As discussed above, no categories of Federal actions would require consultation in the future solely due to the critical habitat designation; all projected categories of future actions have the potential to adversely affect both the PCE and the listed corals. However, an individual action within these categories may ultimately result in impacts to only the PCE because the species may not be present within the action area. In addition, past actions triggered consultation due to effects on one or more other listed species within the areas covered by the proposed designation (e.g., sea turtles, smalltooth sawfish, Johnson's seagrass), but for purposes of the impacts analysis we assumed these other species consultations would not be co-extensive with consultations for the corals or the PCE. For each of the specific areas, whether future consultations are incremental impacts of the critical habitat designation or are co-extensive impacts of the listing or other legal authorities will depend on whether the listed corals or other coral species are in the action area. Based on the relative abundance of the PCE and the listed corals, or all corals combined, there seems to be a higher likelihood that a future project could impact the PCE alone and thus be an incremental impact of designation. On the other hand, projects with larger or diffuse action areas may have a greater likelihood of impacting both the PCE and the corals, and the same modifications would alleviate both types of impacts, so the costs of these projects would more likely be co-extensive either with the listing or existing authorities focused on protecting coral reef resources.
The proposed Florida specific area of critical habitat (Area 1) will have the greatest number of ESA section 7 consultations resulting from the proposed critical habitat designation over the next 10 years, 317 consultations, or, on average, 31 per year; the Puerto Rico specific area (Area 2) will have the second highest number of consultations, 115, or, on average, 11-12 per year; and the U.S.V.I. specific areas combined (Areas 3 and 4) will have the lowest number of consultations, 41, or, on average, 4 per year. The number of future consultations is proportional to the length of coastline in each of the four specific areas: Area 1 is projected to experience 66 percent of total consultations and it contains 65 percent of critical habitat coastline; Area 2 is projected to have 25 percent of consultations and contains 26 percent of shoreline included in the designation; and Areas 3 and 4 are projected to have 9 percent of consultations and contain 8 percent of total shoreline. In all four specific areas USACE-permitted marine construction activities comprise the largest number of projected future actions, in similar percentages across the areas (75 percent in Area 1; 65 percent in Area 2; and 61 percent in Areas 3 and 4). We detected no patterns or clumping in the geographic distribution of projected future actions and future consultations and project modifications within any of the specific areas that would suggest an economic basis for focusing our evaluation of impacts on smaller areas within any of the areas. In other words, no particular areas within the specific areas identified are expected to incur a disproportionate share of the costs of designation.
As mentioned above, the majority of projected ESA section 7 consultations in all four specific areas will be USACE-authorized marine construction activities, and all of these could involve third-party permittees. Although we assumed all of these projects will require formal consultation due to effects on the PCE and the corals to avoid underestimating ESA section 7 impacts, as discussed in our impacts report, it is unlikely that
We estimated the maximum incremental administrative costs of conducting ESA section 7 consultation for each of the four specific areas. Multiplying the total number of consultations by the low and high estimates of cost yields the following ranges of total administrative costs (in 2006 dollars) per area over the next 10 years: $5,543,946 to $10,945,740 in Area 1; $2,011,211 to $3,970,852 in Area 2; and $717,040 to $1,415,695 in Areas 3 and 4. Table 1 above provides a summary of the estimated costs, where possible, of individual project modifications. The Draft Section 4(b)(2) Report provides a detailed description of each project modification, methods of determining estimated costs, and for which action(s) it may be prescribed. Although we have a projection of the
Preventing these project impacts is expected to contribute to the preservation of, and potential increases in, economic and other conservation benefits in each of the four specific areas, as described in the Draft Section 4(b)(2) Report. In Area 1, the natural reefs formed and inhabited by elkhorn and staghorn corals provide over $225 million in average annual use value (2003 dollars) and a capitalized value of over $7 billion to the four Florida counties covered by Area 1. Natural reef-related industries provided over 40,000 jobs in Area 1 in 2003, generating over $1 billion in income. Area 1 experienced almost $6 million in value of commercial reef-dependent fish landings in 2005. Available information also demonstrates the direct link between healthy coral reef ecosystems and the value of scuba-diving related tourism throughout the Caribbean, including Florida, with estimated losses in the hundreds of millions of dollars region-wide per year if reef degradation continues. Coral reefs provided over 87 percent of average annual commercial fish and invertebrate landings in Puerto Rico (Area 2) from 1995 to 2002. In 2005, domestic landings of shallow water reef fish comprised about 66 percent of all fish landed in Puerto Rico and were valued at over $1.7 million. Tourism is not as important a component of Puerto Rico's overall economy as it is in Areas 1, 3, and 4, but it may be much more significant for the shoreside communities from which dive and other reef-related tourism activities embark. Tourism accounts for 80 percent of the U.S.V.I.'s (Area 3) Gross Domestic Product and employment. One survey documented that 100 percent of hotel industry respondents stated they believed there would be a significant impact on tourist visits if the coast and beaches were degraded, or fisheries or coral reefs declined. In 2005, domestic landings of shallow water reef fish comprised about 83 percent of all fish landed in the U.S.V.I. that year and were valued at over $3.8 million.
Conservation benefits to the corals in each of the four specific areas are expected to result from the designation. As we have determined, recovery of elkhorn and staghorn corals cannot succeed without protection of the PCE from destruction or adverse modification. No existing laws or regulations protect the PCE from destruction or adverse modification with a specific focus on increasing coral abundance and eventual recovery. Given the extremely low current abundance of the corals and characteristics of their sexual reproduction (e.g., limited success over long ranges), protecting the PCE throughout the corals' range and throughout each of the four specific areas is extremely important for conservation of these species. We also describe the potential educational and awareness benefits to the corals that may result from the critical habitat designation in our Draft 4(b)(2) Report.
Regarding economic impacts, the limitations to the type and amount of existing information do not allow us to predict the total costs and benefits of the proposed designation. Nevertheless, we believe that our characterization of the types of costs and benefits that may result from the designation, in particular circumstances, may provide some useful information to Federal action agencies and potential project permittees. We have based the proposed designation on a very specifically defined feature essential to the corals' conservation, which allowed us to identify the few, specific effects of human activities that may adversely affect the corals and thus require section 7 consultation under the ESA (sedimentation, nutrification, and physical destruction). We identified potential routine project modifications we may require to avoid destroying or adversely modifying the essential substrate feature. In some cases, these modifications are common environmental mitigation measures that are already being performed under existing laws and regulations that seek to prevent or minimize adverse impacts to coral reef or marine resources in general. Thus, we believe that parties planning future activities within the four specific areas proposed for designation will be able to predict the potential added costs of their projects resulting from the designation based on their knowledge of the location, size, and timing of their planned activities. We have discussed to the extent possible the circumstances under which section 7 impacts will be incremental impacts of this rule, or co-extensive impacts of this rule and the listing of the corals or another existing legal authority. We believe that the limitations of current information about potential future projects do not allow us to be more specific in our estimates of the section 7 impacts (administrative consultation and project modification costs) of the proposed designation. In addition, based on available information, we did not identify any patterns or clumping in the distribution of future projects (and the associated consultations and potential modifications) either between or within the four specific areas proposed for designation that would suggest any disproportionate impact of the designation.
Similarly, with regard to the conservation benefits of the proposed designation, we determined that the designation will result in benefits to society. We provide a literature survey of the valuation of coral reefs to provide context for the readers on benefits of protective measures. Given the potential number and type of future ESA section 7 consultations, we expect that the designation will prevent adverse effects to the proposed critical habitat feature, and thus assist in maintaining the feature's conservation function for the two corals. We believe the designation will assist in preventing further losses of the corals and, eventually, in increased abundance of the two species. By contributing to the continued existence of these two species and eventually their increased abundance, the proposed designation will, at minimum, prevent loss of important societal benefits described above that are currently provided by the species, and potentially increase these benefits over time.
Regarding impacts on Federal agencies responsible for managing resources in areas proposed for designation, we expect section 7 consultation responsibilities will result from the designation as described above. However, as explained further in the section 4(b)(2) report, we determined that the designation will not negatively impact the management or operation of existing managed areas or the Federal agencies responsible for these areas. We further determined that the designation provides an added conservation benefit to the corals beyond the benefits provided by the existing management plans and associated regulations. We believe our evaluation and consideration of the potential impacts above support our conclusion that there are no economic or other relevant impacts that warrant our proposing to exclude particular areas from the designation. Given the limitations on existing data and information, we are specifically requesting comments and information that may be useful in refining our analysis, including any omitted categories of activities that may affect the essential feature and more
As discussed in the next section, we are exercising our discretion to propose excluding particular areas from the critical habitat designation based on national security impacts.
Impacts to national security as a result of the proposed critical habitat designation are expected to occur in Area 1, specifically on 47.3 sq miles (123 sq km) of NASKW. Based on information provided to us by the Navy, national security interests would be negatively impacted by the designation, because the potential additional consultations and project modifications to avoid adversely modifying the PCE would interfere with military training and readiness. Based on these considerations, we propose exclusion of the particular areas identified by the Navy from the critical habitat designation.
The benefit of excluding the NASKW particular areas is that the Navy would only be required to comply with the jeopardy prohibition of ESA section 7(a)(2) and not the adverse modification prohibition. The Navy maintains that the additional commitment of resources in completing an adverse modification analysis, and any change in its activities to avoid adverse modification of critical habitat, would likely reduce its readiness capability. Given that the Navy is currently actively engaged in training, maintaining, and deploying forces in the current war effort, this reduction in readiness could reduce the ability of the military to ensure national security.
The best scientific and commercial data available indicate that the PCE is rare within the proposed exclusion area. Further, the area to be excluded comprises only 1.1 percent of Area 1. The corals and habitat will still be protected through ESA section 7 consultations that prohibit jeopardizing the species' continued existence and require modifications to minimize the impacts of incidental take. Further, there are no other Federal activities that might adversely impact the proposed critical habitat that would be exempted from future consultation requirements due to this proposed exclusion, since these areas are under exclusive military control. Therefore, in our judgment, the benefit of including the particular area of NASKW is outweighed by the national security benefit the Navy will gain by not consulting on critical habitat. Given the small percentage of Area 1 encompassed by this area, we conclude that exclusion will not result in extinction of either elkhorn or staghorn corals.
We are proposing to designate approximately 4,931 square miles (12,569 sq km) of marine habitat within the geographical area occupied by elkhorn and staghorn corals in Florida, Puerto Rico, and the U.S.V.I. The proposed specific areas contain the substrate physical feature, or PCE, we determined to be essential to the conservation of these species and that may require special management considerations or protection.
We request that interested persons submit comments, information, maps, and suggestions concerning this proposed rule and supporting draft 4(b)(2) report during the comment period (see
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to designate critical habitat. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule. We encourage the public's involvement in these hearings. Based on the high level of public interest in elkhorn and staghorn corals, public meetings have been scheduled for:
1. Tuesday, March 4, 2008, 7 p.m. to 9 p.m., IGFA Events Hall, 300 Gulf Stream Way, Dania Beach, Florida.
2. Wednesday, March 5, 2008, 7 p.m. to 9 p.m., Marathon Government Center, 2798 Overseas Highway, Marathon, Florida.
3. Tuesday, March 11, 2008, 6 p.m. to 8 p.m., Administration and Conference Center (ACC), 1st Floor Conference Room, University of the Virgin Islands, #2 John Brewer's Bay, St. Thomas, U.S.V.I./Simulcast Location on St. Croix: The Great Hall, Room #134, University of the Virgin Islands, RR 1, Box 10000 Kingshill, St. Croix, U.S.V.I.
4. Wednesday, March 12, 2008, 7 p.m. to 9 p.m., 4th Floor Conference Room, Environmental Building, Cruz Matos, State Road #838, km 6.3, Sector El Cinco, Rio Piedras, Puerto Rico. Requests for additional public hearings must be made in writing (see
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the scientific information that supports this proposal to designate critical habitat for elkhorn and staghorn corals and incorporated the peer review comments prior to dissemination of this proposed rulemaking. A Draft 4(b)(2) Report (NMFS, 2007) that supports the proposal to designate critical habitat for elkhorn and staghorn corals was also peer reviewed and is available on our Web site (see
We determined that this action is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management programs of Florida, Puerto Rico, and U.S.V.I. The determination has been submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act.
This proposed rule has been determined to be significant under Executive Order (E.O.) 12866. We have integrated the regulatory principles of the E.O. into the development of this proposed rule to the extent consistent with the mandatory duty to designate critical habitat, as defined in the ESA.
We prepared an initial regulatory flexibility analysis (IRFA) pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601,
Small businesses, small nonprofit organizations, and small governmental jurisdictions may be affected by this proposed designation if they engage in activities that would affect the essential feature identified in this proposed designation and if they receive funding or authorization for such activity from a Federal agency. Such activities would trigger ESA section 7 consultation requirements and potential requirements to modify proposed activities to avoid destroying or adversely modifying the critical habitat. The consultation record from which we have projected likely Federal actions over the next 10 years indicates that applicants for Federal permits or funds have included small entities. For example, marine contractors have been the recipients of USACE permits for dock construction; some of these contractors were small entities.
According to the Small Business Administration, businesses in the Heavy and Civil Engineering Construction subsector (NAICS Code 237990), which includes firms involved in marine construction projects such as breakwater, dock, pier, jetty, seawall and harbor construction, must have average annual receipts of no more than $31 million to qualify as a small business (dredging contractors that perform at least 40 percent of the volume dredged with their own equipment, or equipment owned by another small concern are considered small businesses if their average annual receipts are less than or equal to $18.5 million). Our consultation database does not track the identity of past permit recipients or whether the recipients were small entities, so we have no basis to determine the percentage of grantees or permittees that may be small businesses in the future. We do know from the more recent consultation history that small governmental jurisdictions (population less than or equal to 50,000) have received USACE permits for beach renourishment. Small businesses in the tourist and commercial fishing industries may benefit from the rule, as conservation of elkhorn and staghorn corals is expected to result in increased direct and indirect use of, and values derived from, coral reefs. We encourage small businesses, small governmental jurisdictions, and other small entities to provide comment on whether they may be affected by this rulemaking to help us provide an accurate estimate of the number of small entities to which the proposed rule will apply.
We projected that, on average, approximately 39 Federal projects with non-federal grantees or permittees will be affected by implementation of the proposed critical habitat designation, annually, across all four areas proposed for inclusion in the critical habitat designation. Some of these grantees or permittees could be small entities, or could hire small entities to assist in project implementation. Historically, these projects have involved pipeline installation and maintenance, mooring construction and maintenance, dock/pier construction and repair, marina construction, bridge repair and construction, new dredging, maintenance dredging, NPDES/water quality standards, cable installation, beach nourishment, shoreline stabilization, reef ball construction and installation, and port construction. Potential project modifications we have identified that may be required to prevent these types of projects from adversely modifying critical habitat include: project relocation; environmental conditions monitoring; GPS and DPV protocols; diver assisted anchoring or mooring buoy use; pipe collars or cable anchoring; shoreline protection measures; use of upland or artificial sources of sand; direction drilling or tunneling; and sediment and turbidity control measures (see Tables 20, 21 and 24 of the Draft Section 4(b)(2) Report).
Even though we cannot determine relative numbers of small and large entities that may be affected by this proposed rule, there is no indication that affected project applicants would be limited to, nor disproportionately comprise, small entities. It is unclear whether small entities would be placed at a competitive disadvantage compared to large entities. However, as described in the Draft Section 4(b)(2) Report, consultations and project modifications will be required based on the type of permitted action and its associated impacts on the essential critical habitat feature. Because the costs of many potential project modifications that may be required to avoid adverse modification of critical habitat are unit costs (e.g., per mile of shoreline, per cubic yard of sand moved) such that total project modification costs would be proportional to the size of the project, it is not unreasonable to assume that larger entities would be involved in implementing the larger projects with proportionally larger project modification costs.
It is also unclear whether the proposed rule will significantly reduce profits or revenue for small businesses. As discussed throughout the Draft Section 4(b)(2) Report, we made assumptions that all of the future consultations will be formal, and all will require project modifications; but this is likely an overestimation. In addition, as stated above, though it is not possible to determine the exact cost of any given project modification resulting from consultation, the smaller projects most likely to be undertaken by small entities would likely result in relatively small modification costs. Finally, many of the modifications identified to reduce the impact of a project on critical habitat may be a baseline requirement either due to the ESA listing of the species or under another regulatory authority, notably the Clean Water Act.
There are no record-keeping requirements associated with the proposed rule. Similarly, there are no reporting requirements other than those that might be associated with reporting on the progress and success of implementing project modifications, which do not require specific skills to satisfy. However, third party applicants or permittees would be expected to incur costs associated with participating in the administrative process of consultation along with the permitting Federal agency. Such third party costs of consultation were estimated for the 2003 designation of critical habitat for Gulf sturgeon in the southeast United States. In 2006 dollars, per consultation administrative costs for third parties are estimated to average from $3,251 to $4,596.
We encourage all small businesses, small governmental jurisdictions, and other small entities that may be affected by this rule to provide comment on the potential economic impacts of the proposed designation, such as anticipated costs of consultation and potential project modifications, to improve the above analysis.
No Federal laws or regulations duplicate or conflict with the proposed rule. Existing Federal laws and regulations overlap with the proposed rule only to the extent that they provide protection to marine natural resources or corals generally. However, no existing laws or regulations specifically prohibit destruction or adverse modification of critical habitat for, and focus on the recovery of, elkhorn and staghorn corals.
The alternatives to the proposed designation considered consisted of a no-action alternative and an alternative based on a broader conservation objective that would include multiple physical or biological features of the corals' environment in the designation. The no-action, or no designation, alternative would result in no additional ESA section 7 consultations relative to the status quo of the species' listing and finalization of a recently proposed ESA section 4(d) rule. However, while additional administrative and potential project modification costs would not be incurred under this alternative, this alternative is not necessarily a no cost alternative, including to small entities, given the potential loss of existing benefits provided by the corals if they continue to decline due to failure to protect the substrate PCE from adverse modification. The multiple features alternative was expected to increase the number and complexity of section 7 consultations and associated costs to small entities without concomitant increased conservation benefits to the corals, because we believe the additional features are already effectively managed through the jeopardy analysis required under ESA section 7 or subsumed within the substrate PCE identified for this designation.
An environmental analysis as provided for under National Environmental Policy Act for critical habitat designations made pursuant to the ESA is not required. See
Pursuant to the Executive Order on Federalism, E.O. 13132, the Assistant Secretary for Legislative and Intergovernmental Affairs will provide notice of the proposed action and request comments from the appropriate official(s) of the states and territories in which the two species occur.
The proposed action has undergone a pre-dissemination review and determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (Section 515 of Pub. L. 106-554).
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
This proposed rule is consistent with E.O. 13089, which is intended to preserve and protect the biodiversity, health, heritage, and social and economic value of U.S. coral reef ecosystems and the marine environment.
A complete list of all references cited in this rulemaking can be found on our Web site at
Endangered and threatened species, Exports, Imports, Transporation.
Endangered and threatened species.
For the reasons set out in the preamble, we propose to amend 50 CFR parts 223 and 226 as set forth below:
1. The authority citation for part 223 continues to read as follows:
16 U.S.C. 1531-1543; subpart B, § 223.201-202 issued under 16 U.S.C. 1361
2. Amend § 223.102 by removing the text, “NA”, from the column labeled “Citation for Critical Habitat Designation” in paragraphs (d)(1) and (d)(2) and adding in its place the
3. The authority citation of part 226 continues to read as follows:
16 U.S.C. 1533.
4. Add § 226.215, to read as follows:
Critical habitat is designated for both elkhorn and staghorn corals as described in this section. The textual descriptions of critical habitat in paragraphs (b) and (c) of this section are the definitive source for determining the critical habitat boundaries. The overview maps in paragraph (d) of this section are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.
(a)
(b)
(1)
(2)
(3)
(4)
(c)
(1) All waters surrounding Naval Air Station, Key West from the shoreline delimited by the line of mean high water to a distance of 46 m.
(2) All waters identified as naval restricted areas and danger zone at 33 CFR 334.610, as follows:
(i) All waters within 100 yards of the south shoreline of the Harry S. Truman Annex, beginning at a point on the shore at 24°32′45.3″ N, 81°47′51″ W; thence to a point 100 yards due south of the south end of Whitehead Street of 24°32′42.3″ N, 81°47′51″ W; thence extending westerly, paralleling the southerly shoreline of the Harry S. Truman Annex, to 24°32′37.6″ N, 81°48′32″ W, thence northerly to the shore at 24°32′41″ N, 81°48′31″ W.
(ii) All waters within 100 yards of the westerly shoreline of the Harry S. Truman Annex and all waters within a portion of the Truman Annex Harbor, as defined by a line beginning on the shore at 24°33′00″ N, 81°48′41.7″ W; thence to a point 100 yards due west at 24°33′00″ N, 81°48′45″ W; thence northerly, paralleling the westerly shoreline of the Harry S. Truman Annex, including a portion of the Truman Annex Harbor entrance, to 24°33′23″ N, 81°48′37″ W; thence southeasterly to the shore (sea wall) at 24°33′19.3″ N, 81°48′28.7″ W.
(iii) All waters within 100 yards of the U.S. Coast Guard Station and the westerly end of Trumbo Point Annex beginning at the shore at 24°33′47.6″ N, 81°47′55.6″ W; thence westerly to 24°33′48″ N, 81°48′00.9″ W; thence due south to 24°33′45.8″ N, 81°48′00.9″ W; thence westerly to 24°33′47″ N, 81°48′12″ W; thence northerly to 24°34′06.2″ N, 81°48′10″ W; thence easterly to a point joining the restricted area around Fleming Key at 24°34′03.3″ N, 81°47′55″ W.
(iv) Beginning at 24°34′03.3″ N, 81°47′55″ W; proceed northwesterly, maintaining a distance of 100 yards from the shoreline of Fleming Key, except for a clearance of approximately 400 yards across the mouth of Fleming Cove near the southwesterly end of Fleming Key, continue around Fleming Key to a point easterly of the southeast corner of Fleming Key at 24°34′00.8″ N, 81°47′37.5″ W; thence easterly to 24°33′57.6″ N, 81°47′20″ W; thence southerly to a point on the shore at 24°33′54.7″ N, 81°47′20.9″ W.
(v) All waters contiguous to the southwesterly shoreline of Boca Chica Key beginning at a point on the southwest shoreline at 24°33′24″ N, 81°42′30″ W; proceed due south 100 yards to 24°33′20.4″ N, 81°42′30″ W; thence, maintaining a distance of 100 yards from the shoreline, proceed westerly and northerly to 24°34′03″ N, 81°42′47″ W; thence due north to a point at the easterly end of the U.S. Highway 1 (Boca Chica Channel) bridge at 24°34′39″ N, 81°42′47″ W.
(vi) Danger zone. All waters within an area along the northeast side of the Naval Air Station on Boca Chica Key defined by a line beginning at 24°35.472′ N, 81°41.824′ W; thence proceed in a northerly direction to a point at 24°36.289′ N, 81°41.437′ W; thence proceed westerly to a point at 24°36.392′ N, 81°41.970′ W; thence to a point on shore at 24°35.698′ N, 81°41.981′ W.
(3) All waters contained within the area identified as the Fleming Key Drop Zone, as defined by a rectangle with bounding coordinate pairs of: 24°35′42.2″ N and 81°47′43.6″ W; 24°35′42.6″ N and 81°46′27.3″ W; 24°35′13.0″ N and 81°47′38.2″ W; and 24°35′13.3″ N and 81°46′27.2″ W.
(4) All waters identified as bombing and strafing target areas at 33 CFR 334.620(a)(2)(i) through (iii), as follows:
(i) A circular area immediately west of Marquesas Keys with a radius of two nautical miles having its center at 24°33.4′ and 82°10.9′, not to include land area and area within Marquesas Keys.
(ii) A circular area located directly west of Marquesas Keys with a radius of three statute miles having its center at 24°35.6′ and 82°11.6′, not to include land area within Marquesas Keys.
(iii) A circular area located west of Marquesas Keys with a radius of two nautical miles having its center at 24°34′30″ and 82°14′00″ .
(d) Overview maps of designated critical habitat for elkhorn and staghorn corals follow.
Forest Service, USDA.
Notice of withdrawal of the Notice of Intent to prepare an environmental impact statement.
The Forest Supervisor of the Caribou-Targhee National Forest gives notice of the agency's intent to withdraw the Centennial Salvage Timber Sale Environmental Impact Statement. The project is being withdrawn because the trees proposed for harvest are no longer marketable and the project, as originally proposed, no longer meets resource objectives.
The original NOI was published in the
Effective upon the date of publication of this notice in the
Cathey Hardin, Forester, Ashton-Island Park Ranger District, P.O. Box 865, Ashton, ID 83420 Telephone: (208) 558-7301.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.
Rural Utilities Service, USDA.
Notice of Intent To Hold Public Scoping Meeting and Prepare an Environmental Assessment (EA).
The Rural Utilities Service (RUS) an Agency delivering the U.S. Department of Agriculture's Rural Development Utilities Programs, hereinafter referred to as Rural Development and/or Agency, intends to hold a public scoping meeting and prepare an Environmental Assessment (EA) in connection with possible impacts related to a project being proposed by Basin Electric Power Cooperative, Inc. (Basin Electric), of Bismarck, North Dakota. The proposal consists of the construction and operation of a natural gas-fired combustion turbine generation facility referred to as the Culbertson Unit 1 East Side Peaking Project, consisting of a single maximum net 100 Megawatt (MW) unit, at a site near Culbertson, Montana.
RUS will conduct the public scoping meeting in an open-house format on February 26, 2008, from 4 p.m. to 7 p.m., Mountain Standard Time, at the Culbertson American Legion, 119 2nd Street, East, Culbertson, Montana.
Richard Fristik, Senior Environmental Protection Specialist, Water and Environmental Programs, Rural Development, Utilities Programs, 1400 Independence Ave. SW., Mail Stop 1571, Washington DC 20250-1571, telephone: (202) 720-5093 or e-mail:
Basin Electric proposes to construct a new 80-100 MW, simple-cycle natural gas fired turbine less than (50 MW average annual output), ancillary facilities and systems, a new natural gas pipeline to connect to the existing Northern Border Pipeline, and necessary equipment to allow connection to the Western Area Power Administration (WAPA) transmission system. Basin Electric is requesting RUS to provide financing for the proposed project. WAPA will construct a new or modify an existing electrical substation, and construct up to 12 miles of new transmission line to facilitate connection of the proposed facility to its grid, and as such has agreed to be a cooperating agency in preparation of the EA. The Montana Department of Environmental Quality (DEQ) is also a cooperating agency due to its responsibilities under the Montana Environmental Policy Act (MEPA) and for air quality permitting.
Alternatives to be considered by RUS include no action, purchased power, load management, renewable energy sources, distributed generation, and alternative site locations. Comments regarding the proposed project may be submitted (orally or in writing) at the public scoping meeting or in writing within 30 days after the February 26, 2008, scoping meeting to RUS at the address provided in this notice.
A proposal development document—Alternative Evaluation and Site Selection Study—is available for public review at RUS or Basin Electric, at the addresses provided in this notice. This study is also available at the Culbertson Public Library, 202 Broadway, Culbertson, MT 59218.
From information provided in the study mentioned above, and using input provided by government agencies, private organizations, and the public, RUS will prepare a Draft EA. The Draft EA will be available for review and comment for 45 days after distribution. A Final EA will then be prepared that considers all comments received. The Final EA will be available for review and comment for 30 days after distribution. Following the 30-day comment period, RUS will prepare either a Finding of No Significant Impact (FONSI) or an Environmental Impact Statement (EIS). Notices announcing the availability of the Draft and Final EA and a FONSI, as appropriate, will be published in the
Any final action by RUS related to the proposed projects will be subject to, and contingent upon, compliance with all relevant Federal, State and local
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, FAX number (202) 395-5806 or via the Internet at
Economic Development Administration (EDA), Department of Commerce.
Notice.
EDA's mission is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. As part of this mission, EDA administers the Trade Adjustment Assistance for Firms (TAAF) Program under the Trade Act of 1974, as amended, through a national network of eleven Trade Adjustment Assistance Centers (each, a TAAC) to provide technical assistance to firms that have lost domestic sales and employment due to increased imports of similar or competitive goods. This program announcement applies only to the current eleven EDA-funded TAACs, and provides information necessary to clarify the requirements for operating and providing technical assistance to trade-impacted firms as a TAAC under a cooperative agreement with EDA for fiscal years 2008-2010. This notice does not solicit new applications for TAAC operators.
A current TAAC that wishes to apply for federal financial assistance for the three-year project period for fiscal years 2008-2010 must submit an application to EDA at least 30 days before the expiration date of the TAAC's 2005-2007 cooperative agreement. EDA will amend currently active cooperative agreements as necessary to ensure that each TAAC that wishes to apply will have at least 30 days to complete the application requirements set out in this program announcement. EDA's TAAF Program Officer will hold a teleconference during the week of February 11, 2008 for all current TAACs to address questions about this program announcement. The exact date, time, registration requirements, and protocols for the call will be announced to all participants in advance of the teleconference.
Applications for federal financial assistance may be submitted in either paper format or electronic format, in accordance with the procedures provided in this program announcement. The content of the application is the same for both paper and electronic submissions. EDA will not accept facsimile transmissions of applications.
The eleven TAACs may obtain paper application packages by contacting the designated point of contact listed below under
For additional information or for a paper copy of the application package, please contact William P. Kittredge, Ph.D., Program Officer, at
Each TAAC is staffed by trade adjustment assistance professionals that help U.S. production and manufacturing firms apply for certification under the Trade Act. The TAAC assists the firm in completing and submitting to EDA a
This program announcement is intended to provide information and clarify the operational requirements for the current eleven EDA-funded TAACs. The cooperative agreements associated with fiscal years 2005-2007 for the current TAACs will expire this year and, therefore, this program announcement sets out important elements that will be included in each TAAC's cooperative agreement for fiscal years 2008-2010, subject to funding availability.
A current TAAC that wishes to apply for federal financial assistance for the three-year project period for fiscal years 2008-2010 must submit an application to EDA at least 30 days before the expiration date of the TAAC's 2005-2007 cooperative agreement. EDA will amend currently active cooperative agreements as necessary to ensure that each TAAC will have at least 30 days to complete the application requirements set out under this program announcement.
The current TAACs and the States they serve are:
(1) Performance under cooperative agreements with EDA and compliance with the terms and conditions of such cooperative agreements;
(2) Proposed scope of work, budget and application or amended application; and
(3) Availability of funds.
(1) Competence in administering business assistance programs;
(2) Background and experience of staff;
(3) Proposed scope of work, budget and application; and
(4) Availab3ility of funding.
TAACs interested in applying for continued funding are advised to carefully read the instructions contained in this program announcement and on the application forms. The applicant TAAC is solely responsible for ensuring that applications are complete and timely received by EDA. Applications may be submitted either in paper format or electronically.
EDA will evaluate applications consistent with the application review information set forth in this program announcement. A completed application must contain all the items listed in the “Checklist of Application Materials” set out below.
a.
b.
c.
d.
a.
b.
c.
d.
e.
Outline the scope of work to be undertaken by the TAAC during the three-year project period. This section must be organized into the following five elements: (i) TAAC program management; (ii) TAAC business plan; (iii) timeline and benchmarks for program implementation; (iv) TAAC outreach strategy; and (v) plan to coordinate with Trade Adjustment Assistance Programs operated by the Department of Labor (DOL) to provide the most value to firms and maximize the benefit of each federal dollar. Pertinent details on the above-listed elements of the TAAC's scope of work are set out below.
a.
(i) Written standards of conduct governing the performance of its employees engaged in the award and administration of contracts; and
(ii) Written procurement procedures.
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The maximum dollar amount of allocable indirect or facilities and administrative costs for which EDA will reimburse a recipient shall be the lesser of the:
(i) Line-item amount for the federal share of indirect or facilities and administrative costs contained in the EDA-approved budget for the award; or
(ii) federal share of the total allocable indirect or facilities and administrative costs of the award based on the cost rate approved by the Department of Commerce (or applicable cognizant federal agency), provided that the cost rate is current at the time the costs were incurred and provided that the rate is approved on or before the award end date.
The TAAC should include a statement in the budget narrative indicating whether it does not have, or has not applied for, an Indirect or Facilities and Administrative Cost Rate Agreement.
3.
The TAACs are advised to carefully read the following paragraphs that detail programmatic and administrative requirements to be included in each TAAC's fiscal years 2008-2010 cooperative agreement with EDA. Some of the requirements set out below are currently required of TAACs and some are new requirements.
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(i) Is reasonably calculated to contribute materially to the economic adjustment of the client-firm (i.e., that such proposal will constructively assist the firm to establish a competitive position in the same or a different industry);
(ii) Gives adequate consideration to the interests of a sufficient number of separated workers of the client-firm; and
(iii) Demonstrates that the client-firm will make all reasonable effort to use its own resources for its recovery.
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a. A clear and accurate description of the technical requirements for the material, product, or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition;
b. Requirements that the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals;
c. A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards;
d. The specific features of “brand name or equal” descriptions that bidders are required to meet when such items are included in the solicitation;
e. The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement; and
f. Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.
5.
Each TAAC shall maintain a list of each contractor that produces, consults, provides services under, receives federal funds through, or is any way involved in the creation or implementation of an AP for a client-firm. The TAAC shall provide EDA with this list on request. The identity of each contractor that produces, consults on, provides services under, receives federal funds through, or is in any way involved in the creation or implementation of an AP must be disclosed and easily identifiable on the document. As noted above, all APs must be submitted to EDA electronically. Identification of consulting firms shall include Employer Identification Numbers (EINs) and Data Universal Number System (DUNS) numbers.
If the procurement of services to create or implement an AP exceeds $100,000 (the current simplified acquisition threshold), the TAAC shall, on request, make available for EDA pre-award review and procurement documents, such as the requests for proposals or invitations for bids and independent cost estimates. EDA may ask the TAAC to make available information about its procurement practices if the procurement was awarded without competition or if only one bid or offer was received in response to a solicitation or if a proposed contract modification changed the scope of a contract or increased the contract amount by more than $100,000.
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b.
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a. Written procedures that minimize the time elapsing between the transfer of funds to and the disbursement by the TAAC; and
b. Financial management systems that meet the standards for fund control and accountability set out at 15 CFR 14.21.
Advances are limited to the minimum amounts needed for project costs and must be timed in accordance with the actual, immediate cash requirements of the TAAC in carrying out project needs. The timing and amount of advances shall be as close as is administratively feasible to the actual disbursement by the TAAC for direct project costs and the proportionate share of allowable indirect costs.
The TAAC must submit each request for award funds to EDA using Form SF-270, “
4.
5.
When EDA advances funds to a TAAC, the TAAC also must submit Form SF-272, “
The first submission of Forms SF-269 and SF-272, if applicable, shall be as of March 30 of each year and shall be submitted to EDA no later than April 30 of each year; the second report shall be as of June 30 of each year and shall be submitted to EDA not later than July 30 of each year; the third report shall be of September 30 and shall be submitted to EDA not later than October 30 of each year; and the fourth report shall be of December 30 of each year and shall be submitted to EDA no later than January 30 of the following year. EDA may require TAACs that receive advances totaling $1 million or more per year to submit Form SF-272 on a monthly basis.
6.
7.
A copy of the audit must be submitted to the Bureau of the Census at the following address: Federal Audit Clearinghouse, 1201 E. 10th Street, Jeffersonville, IN 47132. In addition, each TAAC must submit the TAAC's currently valid audit required under OMB Circular A-133 to EDA headquarters within 30 days of completion of the audit. The address for OMB Circular A-133 audit submissions is: Department of Commerce, Economic Development Administration, William P. Kittredge, Ph.D., 1401 Constitution Avenue, NW., Room 7009, Washington, DC 20230.
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Failure to comply with any or all of the provisions of an award may have a negative impact on future funding by the Department of Commerce (or any of its operating units) and may be considered grounds for any combination or all of the following actions: temporarily withholding payments pending correction of the deficiency; disallowance of all or part of the cost of the activity or action not in compliance; wholly or partially suspending or terminating the current award; withholding further awards; changing the method of payment from advance to reimbursement only; or the imposition of other special award conditions unique to the circumstances at hand.
The Information Systems Technical Advisory Committee (ISTAC) will meet on February 20 and 21, 2008, 9 a.m., at the Space and Naval Warfare Systems Center (SPAWAR), Building 33, Cloud Room, 53560 Hull Street, San Diego, California, 92152. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to information systems equipment and technology.
1. Welcome and Introduction.
2. Quantum Computing.
3. Lasers Lithography.
4. 3-D Semiconductor Technology.
5. Discussion: Wassenaar Proposals for 2008.
6. Discussion: APP Review.
7. Bio-metric Technology.
8. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that public presentation materials or comments be forwarded before the meeting to Ms. Springer.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on January 31, 2008, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 (10)(d)), that the portion of the meeting concerning trade secrets and commercial or financial information deemed privileged or confidential as described in 5 U.S.C. 552b(c)(4) and the portion of the meeting concerning matters the disclosure of which would be likely to frustrate significantly implementation of an agency action as described in 5 U.S.C. 552b(c)(9)(B) shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results of the Administrative Review of the Suspension Agreement on Certain Cut-to-Length Carbon Steel Plate from the Russia.
In response to a request from Nucor Corporation (Nucor), a domestic interested party, the Department of Commerce (the Department) is conducting an administrative review of the Agreement Suspending the Antidumping Investigation of Certain Cut-to-Length Carbon Steel Plate from the Russian Federation (the Agreement) for the period January 1, 2006 through December 31, 2006, to review the current status of the Agreement and compliance with the Agreement by Joint Stock Company Severstal (Severstal). For the reasons stated in this notice, the Department preliminarily determines that Severstal is in compliance with the Agreement. The preliminary results are set forth in the section titled “Preliminary Results of Review,” infra. Interested parties are invited to comment on these preliminary results. Parties who submit comments are requested to provide: (1) a statement of the issues, and (2) a brief summary of the arguments.
February 6, 2008.
Sally C. Gannon or Jay Carreiro, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230, telephone: (202) 482-0162 or (202) 482-3674.
On December 20, 2002, the Department signed an agreement under section 734(b) of the Tariff Act of 1930, as amended (the Act), with Russian steel producers/exporters, including Severstal, which suspended the antidumping duty investigation on certain cut-to-length carbon steel plate (CTL plate) from Russia.
On January 3, 2007, Nucor submitted a request for an administrative review pursuant to
On October 1, 2007, the Department postponed the preliminary results of this review until January 31, 2008.
The products covered by the Agreement are hot-rolled iron and non-alloy steel universal mill plates (i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm and of a thickness of not less than 4 mm, not in coils and without patterns in relief), of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain iron and non-alloy steel flat-rolled products not in coils, of rectangular shape, hot-rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 mm or more in thickness and of a width which exceeds 150 mm and measures at least twice the thickness. Included as subject merchandise in this petition are flat-rolled products of nonrectangular cross- section where such cross-section is achieved subsequent to the rolling process (i.e., products which have been “worked after rolling”)--for example, products which have been bevelled or rounded at the edges. This merchandise is currently classified in the Harmonized Tariff Schedule of the United States (HTS) under item numbers 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000. Excluded from the subject merchandise within the scope of this Agreement is grade X-70 plate. Although the HTS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive.
The period of review (POR) is January 1, 2006 through December 31, 2006.
Section 751(a)(1)(C) of the Act specifies that the Department shall “review the current status of, and compliance with, any agreement by reason of which an investigation was suspended.” In this case, the Department and Severstal signed the Agreement, which suspended the underlying antidumping duty investigation, on December 20, 2002. Pursuant to the Agreement, each signatory producer/exporter individually agrees to make any necessary price revisions to eliminate completely any amount by which the normal value (NV) of the subject merchandise exceeds the U.S. price of its merchandise subject to the Agreement.
On March 14, 2007 and October 5, 2007, the Department issued its questionnaire and supplemental questionnaire, respectively, to Severstal. Severstal submitted its responses on April 20, 2007 and October 26, 2007, respectively. Neither Nucor nor any other interested party has submitted comments to date. Our review of the information submitted by Severstal indicates that the company has adhered to the terms of the Agreement. In its questionnaire response, Severstal describes the system which it and its U.S. sales arm, Severstal Export GmbH, have established to ensure that each product sold to the United States is sold at or above the relevant NV.
The Department finds no evidence in the information submitted of any discrepancies in Severstal's exports to the United States, either directly or through third countries, which would constitute a violation of the Agreement. Furthermore, the Department examined Severstal's reported sales and cost information covering the POR for purposes of calculating and releasing requested NVs to Severstal on December 20, 2006, and June 20, 2007. See December 20, 2006, letter from Ronald K. Lorentzen to JSC Severstal with attachments. See also June 20, 2007, letter from Ronald K. Lorentzen to JSC Severstal with attachments. The Department also verified Severstal's reported sales covering the period from January 1, 2006, through June 30, 2006, in October 2006. See “Sales Verification Report” Memorandum from Jonathan Herzog through Judith Wey Rudman to Case File (November 16, 2006). Therefore, in light of the record evidence described above, we preliminarily determine that Severstal has been in compliance with the Agreement.
An interested party may request a hearing within 30 days of publication of these preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
February 6, 2008.
Michael Heaney or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4475 or (202) 482-0649, respectively.
On October 2, 2007, the Department of Commerce (the Department) published the preliminary results of the changed circumstances review in the antidumping duty order of polyethylene terephthalate film sheet and strip from the Republic of Korea.
In our
The Department finds that it is not practicable to complete this review within the original time frame. In order to evaluate fairly the issues raised by Petitioners (DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC Inc., and Toray Plastics (America) Inc.) and Kolon Industries, Inc., in their respective case and rebuttal briefs, we are extending the time frame for completion of this review. These issues include the appropriate model matching procedures to employ in this changed circumstances review, and whether the Department should employ investigation or administrative review methodologies in calculating dumping margins. Consequently, in accordance with 19 CFR 351.302(b), the Department is extending the time period for issuing the final results of review by 60 days. Therefore, the final results will be due no later than March 30, 2008. As March 30, 2008 falls on a Sunday, our final results will be issued no later than Monday March 31, 2008. This notice is published in accordance with section 771(i) of the Tariff Act, as amended.
Import Administration, International Trade Administration, Department of Commerce.
February 6, 2008.
Hua Lu, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-6478.
On May 1, 2007, the Department of Commerce (“the Department”) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), requires the Department to issue preliminary results within 245 days after the last day of the anniversary month of an order for which a review is requested and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the 245-day time period to a maximum of 365 days. We determine that completion of the preliminary results of this review within the 245-day period is not practicable because the Department requires additional time to analyze information pertaining to the respondents' sales practices, factors of production, and to issue and review responses to supplemental questionnaires.
Because it is not practicable to complete this review within the time specified under the Act, we are extending the time period for issuing the preliminary results of review by 90 days until April 30, 2008, in accordance with section 751(a)(3)(A) of the Act. The final results continue to be due 120 days after the publication of the preliminary results.
This notice is published pursuant to sections 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, Department of Commerce.
On August 3, 2007, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on stainless steel sheet and strip in coils (SSSSC) from Taiwan (72 FR 43236). This review covers three producers/exporters of the subject merchandise to the United States. The period of review (POR) is July 1, 2005, through June 30, 2006. We are rescinding the review with respect to nine companies because these companies had no shipments of subject merchandise during the POR.
Based on our analysis of the comments received, we have made certain changes 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 Review.”
February 6, 2008.
Elizabeth Eastwood, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC, 20230; telephone (202) 482-3874.
This review covers three producers/exporters. These companies are Chia Far Industrial Factory Co., Ltd. (Chia Far), PFP Taiwan Co., Ltd. (PFP Taiwan) and Yieh Trading Corp. (also known as Yieh Corp.).
On August 3, 2007, the Department published in the
We invited parties to comment on our preliminary results of review. In September 2007, we received case and rebuttal briefs from the petitioners
The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by the order are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness, and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to the order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings: 7219.13.00.31, 7219.13.00.51, 7219.13.00.71, 7219.13.00.81, 7219.14.00.30, 7219.14.00.65, 7219.14.00.90, 7219.32.00.05, 7219.32.00.20, 7219.32.00.25, 7219.32.00.35, 7219.32.00.36, 7219.32.00.38, 7219.32.00.42, 7219.32.00.44, 7219.33.00.05, 7219.33.00.20, 7219.33.00.25, 7219.33.00.35, 7219.33.00.36, 7219.33.00.38, 7219.33.00.42, 7219.33.00.44, 7219.34.00.05, 7219.34.00.20, 7219.34.00.25, 7219.34.00.30, 7219.34.00.35, 7219.35.00.05, 7219.35.00.15, 7219.35.00.30, 7219.35.00.35, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 7219.90.00.60, 7219.90.00.80, 7220.12.10.00, 7220.12.50.00, 7220.20.10.10, 7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 7220.20.70.05, 7220.20.70.10, 7220.20.70.15, 7220.20.70.60, 7220.20.70.80, 7220.20.80.00, 7220.20.90.30, 7220.20.90.60, 7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under the order is dispositive.
Excluded from the scope of the order are the following: (1) Sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
Also excluded from the scope of the order are certain specialty stainless steel products described below. Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of the order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of less than 0.002 or greater than 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of the order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as Arnokrome III.
Certain electrical resistance alloy steel is also excluded from the scope of the order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as Gilphy 36.
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of the order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium, and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as Durphynox 17.
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of the order. These include stainless steel strip in coils used in the production of textile cutting tools (
The POR is July 1, 2005, through June 30, 2006.
Nine of the companies that responded to the Department's questionnaire stated that they had no shipments/entries of subject merchandise into the United States during the POR. These companies are: (1) Chain Chon Industrial Co., Ltd.; (2) Chien Shing Stainless Co.; (3) China Steel Corporation; (4) Goang Jau Shing Enterprise Co., Ltd.; (5) Ta Chen Stainless Pipe Co., Ltd.; 6) Tang Eng Iron Works; (7) Yieh Loong Enterprise Co. Ltd.; (8) Yieh Mau Corp.; and (9) Yieh United Steel Corporation. We have confirmed this with data obtained from U.S. Customs and Border Protection (CBP). Therefore, in accordance with 19 CFR 351.213(d)(3), and consistent with the Department's practice, we are rescinding our review with respect to these companies.
The Department finds that it is appropriate to rescind the instant review with respect to the Emerdex
In the preliminary results, we determined that, in accordance with section 776(a)(2)(A) of the Act, the use of facts available was appropriate as the basis for the dumping margins for PFP Taiwan and Yieh Corp. because these companies failed to respond to the Department's requests for information.
Section 776(a) of the Act, provides that the Department will apply “facts otherwise available” if,
In August 2006, the Department requested that all companies subject to review respond to the Department's questionnaire. The original deadline to file a response was September 1, 2006. Because PFP Taiwan did not respond to this request for information, on September 7, 2006, the Department issued a letter to PFP Taiwan affording it a second opportunity to respond to the Department's request for information. However, PFP Taiwan also did not respond to this second questionnaire. On July 31, 2007, the Department placed documentation on the record confirming delivery of the questionnaire to this company.
Furthermore, one additional company, Yieh Corp., claimed that it made no shipments of subject merchandise to the United States during the POR. However, according to data obtained from CBP, it appeared that Yieh Corp. shipped subject merchandise to the United States during the POR. On January 29, 2007, we placed copies of the entry documentation related to these shipments on the record of this proceeding.
On February 1, 2007, we requested that Yieh Corp. explain why it did not report the entries in question, and on March 5, 2007, Yieh Corp. responded by stating that it had inadvertently overlooked the entries. Therefore, again on May 24, 2007, we informed Yieh Corp. that it was required to respond to the Department's questionnaire. However, Yieh Corp. failed to file a response.
By failing to respond to the Department's questionnaire, PFP Taiwan and Yieh Corp. withheld requested information and significantly impeded the proceeding. Therefore, as in the preliminary results, the Department finds that the use of total facts available for PFP Taiwan and Yieh Corp. is appropriate pursuant to sections 776(a)(2)(A) and (C) of the Act.
In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information.
Section 776(b) of the Act provides that the Department may use as adverse facts available (AFA) information derived from: (1) The petition; (2) the final determination in the investigation; (3) any previous review; or (4) any other information placed on the record.
The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.”
In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have assigned a rate of 21.10 percent, which is the highest appropriate dumping margin assigned in this or any prior segment of the proceeding, to PFP Taiwan and Yieh Corp. The Department finds that this rate is sufficiently high as to effectuate the purpose of the AFA rule (
For the reasons stated in the
As discussed in the preliminary results, we conducted an investigation to determine whether Chia Far made home market sales of the foreign like product during the POR at prices below its costs of production (COP) within the meaning of section 773(b) of the Act. For these final results, we performed the cost test following the same methodology as in the
We found that more than 20 percent of Chia Far's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade.
Therefore, for purposes of these final results, we found that Chia Far made below-cost sales not in the ordinary course of trade. Consequently, we disregarded the below-cost sales and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.
All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Issues and Decision Memorandum (Decision Memo) accompanying this notice, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Department building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at
Based on our analysis of the comments received, we have made certain changes in the margin calculations for Chia Far. These changes are discussed in the relevant sections of the Decision Memo.
We determine that the following weighted-average margin percentages exist for the period July 1, 2005, through June 30, 2006:
Chia Far Industrial Factory Co., Ltd., 1.41, PFP Taiwan Co., Ltd., 21.10, Yieh Trading Corp./Yieh Corp. 21.10.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.
Pursuant to 19 CFR 351.212(b)(1), we calculated importer-specific
Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Further, the following deposit requirements will be effective for all shipments of SSSSC from Taiwan entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent,
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 double antidumping duties.
This notice serves as the only 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 written notification of return/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 of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
1. Unreported Sales
2. Home Market Rebates
3. Affiliation Between Chia Far Industrial Co. Ltd. and Lucky Medsup
4. Lucky Medsup's U.S. Indirect Selling Expenses
5. Cost of Manufacturing
6. Clerical Error in the Preliminary Results
7. Affiliated Party Purchases
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The North Pacific Fishery Management Council's (Council) Scallop Plan Team will meet in Anchorage, AK.
The meeting will be held on February 21, 2008, from 10 a.m. to 5 p.m. and February 22, 2008, from 9 a.m. to 2 p.m.
The meeting will be held a the Captain Cook Hotel, 939 W 5th Avenue, Club Room 2, 10th Floor, Anchorage, AK 99501
Diana Stram, Council staff; telephone: (907) 271-2809.
The agenda will include: Elect officers and discuss additional membership needs; discussion of current and future scallop survey techniques; central region assessment techniques, plans and management; review Status of Statewide Scallop Stocks and compile SAFE Report; discussion of ageing techniques and documentation issues; discussion of economics of the scallop fishery; and review and revise research priorities.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen at (907) 271-2809 at least 7 working days prior to the meeting date.
Department of Defense.
Notice of Advisory Committee Meeting Date Change.
On
Debra Rose, Executive Officer, Defense Science Board, 3140 Defense Pentagon, Room 3B888A, Washington, DC 20301-3140, via e-mail at
United States Marine Corps, DoD.
Notice to Delete Five System of Records Notices.
The U.S. Marine Corps is deleting five systems of records notices from its inventory of records systems subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a).
Effective February 6, 2008.
Send comments to Headquarters, U.S. Marine Corps, FOIA/PA Section (CMC-ARSE), 2 Navy Annex, Room 1005, Washington, DC 20380-1775.
Ms. Tracy D. Ross at (703) 614-4008.
The U.S. Marine Corps' records systems notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The U.S. Marine Corps proposes to delete five systems of records notices from its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The changes to the system of records are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports.
Citizen Band Radio Request and Authorization File (January 4, 2000, 65 FR 291).
Individual Training Records/Training Related Matters (January 4, 2000, 65 FR 291).
Navy/Marine system of records notice NM05000-2, Program Management and Locator System printed in the
Marine Corps Locator Files (February 22, 1993, 58 FR 10630).
Officer Slate File System (February 22, 1993, 58 FR 10630).
Navy/Marine system of records notice NM05000-2, Program Management and Locator System printed in the
Telephone Billing/Accounting File (January 4, 2000, 65 FR 291).
Records collection no longer required.
Department of Air Force, DOD.
Notice to Amend a System of Records.
The Department of Air Force proposes to amend a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on March 7, 2008, unless comments are received that would result in a contrary determination.
Send comments to the Air Force Privacy Act Officer, Office of Warfighting Integration and Chief Information Officer, SAF/XCISI, 1800 Air Force Pentagon, Suite 220, Washington, DC 20330-1800.
Ms. Novella Hill at (703) 588-7855.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
War Souvenir Registration/Authorization (February 27, 2007, 72 FR 8697).
Delete entry and replace with “F024 AF USTRANSCOM A.”
War Souvenir Registration/Authorization.
United States Transportation Command (USTRANSCOM), ATTN: TCJ5/4-PT, 508 Scott Drive, Scott AFB, IL 62225-5357.
Military and DoD civilian personal serving in overseas theaters.
Name, Social Security Number (SSN), rank and/or grade, Organization and/or unit, home address, war souvenir description, and overseas theater.
10 U.S.C. Part IV, Chapter 153, Sec. 2579; DoDD 5030.40, DoD Customs and Border Clearance Program; DoD 4500.9R Defense Transportation Regulation, Part V DoD Customs and Border Clearance Policies and Procedures; and E.O. 9397 (SSN).
To register and authorize an individual to retain a war souvenir and to return the item to the United States.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 552a(b)(3) as follows:
The DoD “Blanket Routine Uses” set forth at the beginning of Department of Air Force's compilation of systems of records notices apply to this system.
Paper in file folders.
Name and Social Security Number (SSN).
Access to the records is limited to those who require the records in the performance of their official duties. Physical entry is restricted by the use of locks, guards, and administrative procedures.
Disposition pending approval of records disposition schedule by the National Records and Administration Agency.
United States Transportation Command (USTRANSCOM), ATTN: TCJ5/4-PT—Transportation Specialist, 508 Scott Drive, Scott AFB, IL 62225-5357.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the United States Transportation Command (USTRANSCOM), ATTN: TCJ5/4-PT-Transportation Specialist, 508 Scott Drive, Scott AFB, IL 62225-5357.
Requests should contain individual's name, address, Social Security Number (SSN), unit, Company Commander/Contracting Officer's Representative, and date requested war souvenir registration.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the United States Transportation Command (USTRANSCOM), ATTN: TCJ5/4-PT-Transportation Specialist, 508 Scott Drive, Scott AFB, IL 62225-5357.
Requests should contain individual's name, address, Social Security Number (SSN), unit, Company Commander/
From the individual.
None.
Defense Nuclear Facilities Safety Board.
Notice, recommendation.
The Defense Nuclear Facilities Safety Board has made a recommendation to the Secretary of Energy pursuant to 42 U.S.C. 2286a(a)(5) which addresses the safety classification of fire protection systems at defense nuclear facilities in the Department of Energy complex.
Comments, data, views, or arguments concerning the recommendation are due on or before March 7, 2008.
Send comments, data, views, or arguments concerning this recommendation to: Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004-2001.
Brian Grosner or Andrew L. Thibadeau at the address above or telephone (202) 694-7000.
Fire protection systems in defense nuclear facilities have generally not been designated as “safety-class” as that term pertains to protection of the public from accidents. Such designation would bring into play a variety of Department of Energy (DOE) rules and directives, among them DOE Order 420.1B,
Accordingly, when DOE's Savannah River Site contractor proposed in the late 1990s that certain fire protection systems employed in the site's tritium facilities be designated as safety-class (and thus credited with protecting the public from accidents involving an offsite release of tritium), both DOE and the Defense Nuclear Facilities Safety Board (Board) were forced to conduct reviews of the proposal on an ad hoc basis without reference to specific guidance. The Board's review led to a March 18, 1999, letter to the Secretary of Energy agreeing with the reclassification of certain fire protection systems at the site's tritium facilities. The technical basis for the Board's agreement is found in the report appended to the letter:
Controlling incipient fires through operability of a more reliable fire suppression system would make large fires less likely to occur. To substantially reduce the predicted likelihood of such fires to the “extremely unlikely” frequency range, WSRC reclassified the fire suppression (and some detection) systems as safety class. TSRs will be applied to fire protection systems falling in this category * * * WSRC acknowledges that installed fire suppression systems will not meet criteria such as redundancy or nuclear-grade quality assurance, nor are these systems seismically qualified. Imposition of safety-class requirements means that, in addition to meeting National Fire Protection Association (NFPA) code requirements, higher levels of maintenance and surveillance and of operability for these systems will be addressed in the TSRs. The intent is to increase the reliability of the suppression systems to maintain the SAR assumption that full-facility fires will be extremely unlikely. The TSRs will require that immediate actions be taken, such as cessation of operations and posting of a fire watch, should a safety-class fire suppression system be taken out of service or found to be inoperative.
In June of 2000, the Board addressed more broadly the safety classification of fire protection systems. In Section 3.3 of Technical Report DNFSB/TECH-27,
Designation of safety-class or safety-significant structures, systems, and components (SSCs), administrative controls, and engineered design features is determined through a prescribed methodology (DOE-STD-3009-94, [U.S. Department of Energy, 1994] and DOE G 420.1-2, [U.S. Department of Energy, 2000]) that relies to a large extent on the engineering judgment of the safety analysts and designers. Overall, the objective is to prevent a fire, or to control and confine a fire should one occur. Methods of accomplishing this objective are set forth in NFPA codes that have been a requirement of the DOE program for decades. It is essential that decisions concerning the application of these codes and the selection of features and controls be made by qualified and experienced fire protection engineers.
This section of the report provided additional guidance on application of these principles to the control of ignition sources, use of passive fire barriers, suppression of incipient fires, minimization of transient combustibles, and enhancement and protection of confinement systems such as ventilation through HEPA (high efficiency particulate air) filters. The report acknowledged the Board's letter regarding Savannah River's tritium facilities and encouraged the safety designation of suppression systems when they are relied on for critical safety functions: “Fire sprinkler systems relied upon for worker safety and public protection should be classified as safety-class or safety-significant SSCs because they provide the most effective, automated, and quick response to a fire.” (Report, p. 3-3) The report noted that the Los Alamos National Laboratory (LANL) had identified the fire sprinkler system in the Chemistry and Metallurgy Research Facility as a vital system and had begun an effort to inspect and test the system for functional performance.
Subsequent to the Board's 1999 letter and 2000 technical report, DOE expanded its reliance on fire protection systems as primary lines of defense against accidents. For example, the following projects initially planned or reclassified fire protection systems as safety-class or safety-significant:
• Chemistry and Metallurgy Research Replacement Project, LANL.
• Device Assembly Facility, Nevada Test Site.
• Building 9212, Y-12 National Security Complex.
• Explosive Bays and Cells, Pantex Plant.
• Building 332, Lawrence Livermore National Laboratory.
• Highly Enriched Uranium Materials Facility, Y-12 National Security Complex.
• Uranium Processing Facility, Y-12 National Security Complex.
• K-Area Container Surveillance and Storage Capability, Savannah River Site.
Although it should be clear from the Board's earlier statements that it can support reliance on fire protection systems as primary safety measures, the Board is no longer comfortable with
Lack of suitable requirements and guidance does not pose an immediate safety issue, because each separate project listed above can be evaluated on an ad hoc basis both by DOE and by the Board. However, this unstructured approach is wasteful of DOE and Board resources and prevents the sharing of technical knowledge and engineering solutions throughout the complex. More importantly, the Board's enabling legislation, 42 U.S.C. 2286a(a)(1) requires that it
* * * recommend to the Secretary of Energy those specific measures that should be adopted to ensure that public health and safety are adequately protected. The Board shall include in its recommendations necessary changes in the content and implementation of such standards, as well as matters on which additional data or additional research is needed.
Because the Department has chosen to increase its reliance on fire protection systems as primary safety systems, the Board concludes that the Department should without delay develop standards in this area. These standards should be sufficiently specific to guide both the design of new fire protection systems and the reclassification of existing systems. All of the necessary attributes of a safety-class or safety-significant fire protection system should be identified, leaving room for engineering judgment and innovative approaches in achieving high reliability and quality.
The Board observes that work on revising a key fire protection directive, DOE-STD-1066-99,
Pursuant to its statutory mandate to recommend needed changes in DOE's standards for safety at defense nuclear facilities, the Board recommends that DOE:
1. Develop design and operational criteria for safety-class and safety-significant fire protection systems.
2. Use the revision of DOE-STD-1066-99,
a. Design approaches for a variety of fire protection systems, e.g., automatic sprinklers, gaseous suppression, alarm, detection, and passive barriers, that can be used to achieve safety-class or safety-significant designation.
b. Guidance on technical safety requirements and administrative controls, in areas such as maintenance, tests, and configuration control, so as to ensure the operability of safety-class and safety-significant fire protection systems.
3. Identify design codes and standards for safety-class and safety-significant fire protection systems and their components, and incorporate them into DOE Guide 420.1-1,
4. Modify other DOE directives and standards as necessary to ensure consistency with the new guidance for fire protection systems.
Applications Available: February 6, 2008.
These priorities are:
School readiness projects that provide age appropriate educational programs and language skills to three- and four-year-old Indian students to prepare them for successful entry into school at the kindergarten school level.
College preparatory programs for secondary school students designed to increase competency and skills in challenging subject matters, including math and science, to enable Indian students to transition successfully to postsecondary education.
These priorities are:
We award five competitive preference priority points to an applicant that presents a plan for combining two or more of the activities described in section 7121(c) of the ESEA over a period of more than one year.
For
We award five competitive preference priority points to an application submitted by an Indian tribe, Indian organization, or Indian institution of higher education, including a consortium of any of these entities with other eligible entities. An application from a consortium of eligible entities that meets the requirements of 34 CFR 75.127 through 75.129 and includes an Indian tribe, Indian organization, or Indian institution of higher education will be considered eligible to receive the five competitive preference points. These competitive preference points are in addition to the five competitive preference points that may be given under
A consortium agreement, signed by all parties, must be submitted with the application in order for the application to be considered a consortium application. Letters of support do
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
The Department is not bound by any estimates in this notice.
1.
An application from a consortium of eligible entities must meet the requirements of 34 CFR 75.127 through 75.129. An application from a consortium of eligible entities must include a signed consortium agreement with the application. Letters of support do
Applicants applying in consortium with or as an “Indian organization” must demonstrate eligibility by showing how the “Indian organization” meets all the criteria outlined in 34 CFR 263.20.
The term “Indian institution of higher education” means an accredited college or university within the United States cited in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (7 U.S.C. 301 note), any other institution that qualifies for funding under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801
2.
3.
1.
To obtain a copy from ED Pubs, write, fax, or call the following: Education Publications Center, P.O. Box 1398, Jessup, MD 20794-1398. Telephone, toll free: 1-877-433-7827. Fax: (301) 470-1244. If you use a telecommunications device for the deaf (TDD), call, toll free: 1-877-576-7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 299A.
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).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
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; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, you must
We will reject your application if you apply these standards and exceed the page limit; or if you apply other standards and exceed the equivalent of the page limit.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV.6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
Applications for grants under the Demonstration Grants for Indian Children competition, CFDA Number 84.299A, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for Demonstration Grants for Indian Children at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted, and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or
• 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 (with the exception of consortium agreements which must be submitted within the electronic application, if applicable).
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.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Lana Shaughnessy, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C152, Washington, DC 20202-6335. FAX: (202) 260-7779.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.299A), 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.
(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 grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
We encourage applicants to demonstrate a strong capacity to provide reliable data on these measures in their responses to the selection criteria “Quality of project services” and “Quality of the project evaluation.” All grantees will be expected to submit, as part of their performance report, information with respect to these performance measures.
Lana Shaughnessy, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5C152, Washington, DC 20202-6335. Telephone: (202) 205-2528 or by e-mail:
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 Fossil Energy (FE), Department of Energy (DOE).
Notice of Procedural Order Amending Natural Gas Import and Export Orders.
DOE has issued the attached Procedural Order eliminating the quarterly reporting requirement and modifying the current monthly reporting requirement for existing and future orders authorizing the import and export of natural gas and liquefied natural gas (LNG). The Procedural Order includes the background and basis for the reporting and the new monthly requirement as modified.
The first monthly report, for the reporting period January 1, 2008 through January 31, 2008, required by the Procedural Order shall be filed no later than February 29, 2008.
All monthly filings required by the Procedural Order shall be made to U.S. Department of Energy (FE-34), Office of Fossil Energy, Office of Natural Gas Regulatory Activities, P.O. Box 44375, Washington, DC 20026-4375, Attention: Ms. Yvonne Caudillo. Reports may be e-mailed to Ms. Caudillo at
Yvonne Caudillo, U.S. Department of Energy (FE-34), Office of Fossil Energy, Office of Natural Gas Regulatory Activities, P.O. Box 44375, Washington, DC 20026-4375, (202) 586-4587,
FE is delegated the authority to regulate natural gas and LNG imports and exports under section 3 of the Natural Gas Act (15 U.S.C. 717b).
DOE has undertaken a Natural Gas Data Collection Initiative to improve the way it gathers and disseminates information about the U.S. natural gas trade. As a result of this initiative, FE continues to seek ways to improve and streamline its reporting process. As part of that effort, the submission of quarterly reports will no longer be required, and monthly reports will be amended to include the information and details previously collected on the quarterly reports. Monthly reports must still be filed within 30 days following the end of each calendar month indicating whether or not imports and/or exports have been made and reporting the details of all import and/or export transactions. This Procedural Order amends existing import and export authorizations listed in Appendix A to reflect such revisions. This Procedural Order also clarifies how those reports shall be filed with DOE. This monthly reporting requirement will also be made a condition in all future natural gas and LNG import and export authorizations. Requiring the submission of import and export data on a monthly basis only will improve the accuracy, timeliness, and publication of the data collected, and will simplify the obligation and reduce the burden on authorization holders who are now required to provide two different data reports on two different reporting schedules.
On August 10, 2006, DOE's Energy Information Administration (EIA) published a notice in the
On January 29, 2007, EIA published a notice in the
In accordance with DOE's Natural Gas Data Collection Initiative and pursuant to section 3 of the Natural Gas Act, it is hereby ordered that:
1. The quarterly reporting requirement in all natural gas and LNG import and export authorizations listed in Appendix A attached to this Order is eliminated as of January 1, 2008.
2. The monthly reporting requirement in all natural gas and LNG import and export authorizations listed in Appendix A attached to this Order, including how those reports shall be filed with DOE, is amended as follows:
All authorized importers and exporters shall file a report with the Office of Natural Gas Regulatory Activities within 30 days following the last day of each calendar month indicating whether imports and/or exports have been made. Monthly reports shall be filed whether or not initial deliveries have begun. If imports and/or exports have not occurred, a report of “no activity” for that month must be filed. If imports and/or exports have occurred, the report must give the following details:
(A) For natural gas imports and/or exports, the report shall include:
(1) for imports, the country of origin,
(2) for exports, the country of destination,
(3) the point(s) of entry or exit,
(4) the volume in thousand cubic feet (Mcf),
(5) the average purchase price of gas per million British thermal units (MMBtu) at the international border,
(6) the name of the supplier(s),
(7) the name of the U.S. transporter(s),
(8) the estimated or actual duration of the supply agreement(s), and
(9) for imports, the geographic market(s) served (list State(s), U.S. Census Region(s), or general U.S. geographic area(s));
(B) For LNG imports by vessel, the report must include:
(1) the name of the U.S. receiving terminal,
(2) the name of the LNG tanker,
(3) the date of arrival at the U.S. receiving terminal,
(4) the country of origin,
(5) the name of the supplier/seller,
(6) the volume in Mcf,
(7) the landed price per MMBtu at the point of import,
(8) the duration of the supply agreement (indicate spot purchases),
(9) the name(s) of the purchaser(s), and
(10) the geographic market served (list State(s), U.S. Census Region(s), or general U.S. geographic area(s));
(C) For LNG exports by vessel, the report must include:
(1) the name of the U.S. export terminal,
(2) the name of the LNG tanker,
(3) the date of departure from the U.S. export terminal,
(4) the country of destination,
(5) the name of the supplier/seller,
(6) the volume in Mcf,
(7) the delivered price per MMBtu,
(8) the duration of the supply agreement (indicate spot sales), and
(9) the name(s) of the purchaser(s); and
(D) For LNG imports and/or exports by truck, the report must include:
(1) the name of the U.S. receiving or departure facility,
(2) the country of origin or destination,
(3) the point(s) of entry or exit,
(4) the name(s) of the supplier(s)/seller(s),
(5) the name(s) of the LNG transporter(s),
(6) the volume in Mcf,
(7) for imports, the landed price and for exports, the delivered price per MMBtu at the point of entry or exit,
(8) the duration of the supply agreement,
(9) for imports, the geographic market served (list State(s), U.S. Census Region(s), or general U.S. geographic area(s)).
The first monthly report for the reporting period January 1, 2008, through January 31, 2008, required by this Procedural Order shall be filed no later than February 29, 2008. All monthly report filings shall be made to U.S. Department of Energy (FE-34), Office of Fossil Energy, Office of Natural Gas Regulatory Activities, P.O. Box 44375, Washington, DC 20026-4375 Attention: Ms. Yvonne Caudillo. Alternatively, reports may be e-mailed to Ms. Caudillo at
Bicent (California) Malburg, LLC (Bicent) filed an application for market-based rate authority, with accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy, capacity and ancillary services at market-based rates. Bicent also requested waivers of various Commission regulations. In particular, Bicent requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by Bicent.
On January 24, 2008, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is February 25, 2008.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, Bicent is authorized to issue securities and assume obligations or liabilities as a guarantor, endorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Bicent, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of Bicent's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests, and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13075-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Competing Preliminary Permit—Anyone desiring to file a competing application for preliminary permit for a proposed project must submit the competing application itself, or a notice of intent to file such an application, to the Commission on or before the specified comment date for the particular application (see 18 CFR 4.36). Submission of a timely notice of intent allows an interested person to file the competing preliminary permit application no later than 30 days after the specified comment date for the particular application. A competing preliminary permit application must conform with 18 CFR 4.30 and 4.36.
o. Competing Development Application—Any qualified development applicant desiring to file a competing development application must submit to the Commission, on or before a specified comment date for the particular application, either a competing development application or a notice of intent to file such an application. Submission of a timely notice of intent to file a development application allows an interested person to file the competing application no later than 120 days after the specified comment date for the particular application. A competing license application must conform with 18 CFR 4.30 and 4.36.
p. Notice of Intent—A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit, if such an application may be filed, either a preliminary permit application or a development application (specify which type of application). A notice of intent must be served on the applicant(s) named in this public notice.
q. Proposed Scope of Studies under Permit—A preliminary permit, if issued, does not authorize construction. The term of the proposed preliminary permit would be 36 months. The work proposed under the preliminary permit would include economic analysis, preparation of preliminary engineering plans, and a study of environmental impacts. Based on the results of these studies, the Applicant would decide whether to proceed with the preparation of a development application to construct and operate the project.
r. Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
s. Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, “COMPETING APPLICATION” OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
t. Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that on January 28, 2008, Dominion Resources Services, Inc. filed a complaint under section 206 of the Federal Power Act alleging that the PJM Interconnection, LLC is violating the generator interconnection provisions of its tariff.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of answers, protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that during the month of December 2007, the status of the above-captioned entities as Exempt Wholesale Generators or Foreign Utility Companies became effective by operation of the Commission's regulations. 18 CFR 366.7(a).
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-13054-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
j.
Mule Lake, which stores runoff from intermittent streams, has a normal maximum water surface elevation of approximately 5,605 feet above sea level (ASL). USGS topographic data indicate that Mule Lake occurs within a closed basin, with no outlet streams. Currently, Mule Lake has an approximate storage capacity of 1,600 acre-feet. Under the proposed project, storage in Mule Lake would be increased to about 4,000 acre-feet by increasing the lake level 20 feet. Because Mule Lake is in a closed basin, no new dam would be required to increase the lake level and storage. Lake Abert, which receives water from Chewaucan River, various springs and intermittent runoff streams, has a normal maximum water surface elevation of approximately 4,254 feet ASL. Currently, water entering Lake Abert remains in Lake Abert until it evaporates, i.e. Lake Abert occurs within a closed topographic basin with no outlets. Lake Abert has an approximate storage capacity of 400,000 acre-feet.
A new 45-mile-long 128-kV transmission line will be constructed to interconnect the proposed project with an existing Bonneville Power Administration 500-kV, AC transmission line located northwest of Lake Abert. This interconnection will link the proposed project with the both the California-Nevada and Pacific Northwest power grids. A new substation would be constructed at the point of interconnection. The proposed project would have an annual generation of 489.1 GWh.
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l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
m.
n.
o.
p.
q.
r.
s.
Take notice that on January 29, 2008, Conectiv Energy Supply, Inc. and the California Parties filed a joint compliance filing in response to the Commission's January 4, 2008 Order.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o. Any filings must bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers.
p.
q. Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
The staff of the Federal Energy Regulatory Commission (Commission) will conduct a public scoping meeting and site visit for the Whitetail Natural Gas Storage Project involving construction and operation of natural gas storage, pipeline, and compressor station facilities by Tarpon Whitetail Gas Storage, LLC (Whitetail) in Monroe County, Mississippi.
We invite you to attend the public scoping meeting beginning at 7 p.m. (CST) on Thursday evening, February 14, 2008, to provide environmental comments on the proposed project. Your input will help us determine the issues that need to be evaluated in the environmental assessment. The public scoping meeting will be held at: Monroe County Court House, 201 W. Commerce, Aberdeen, Mississippi 39730,
The Commission staff will also conduct a site visit of the location of the proposed facilities. The site visit will begin at approximately 1 p.m. (CST) on February 14, 2008. Anyone interested in participating in the site visit may attend; however, they must provide their own transportation. The Commission staff, company representatives, and interested participants will meet in the parking lot at the following location: Shelaines Restaurant, 202 Hwy 145 North, Aberdeen, Mississippi 39730,
Take notice that on December 28, 2008, pursuant to subsection 209.205(c) of the regulations of the Federal Energy Regulatory Commission (Commission) implementing the amendments to section 3 of the Federal Power Act contained in section 201 of the Public Utility Regulatory Policies Act of 1978, 18 CFR 292.205(c), AES Hawaii, Inc. requests a limited waiver of the operating standard for a Topping Cycle Cogeneration Facility.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protest on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on January 15, 2008, Columbia Gulf Transmission Company (Columbia Gulf), 5151 San Felipe Suite 2500, Houston, Texas 77056, filed an abbreviated application pursuant to section 7(b) of the Natural Gas Act for permission and approval to abandon: (1) By sale to Tennessee Gas Pipeline Company (Tennessee) certain natural gas facilities, most of which are jointly owned with Tennessee, located both offshore and onshore Louisiana; (2) the services currently provided through the facilities to be sold; (3) certain transportation/exchange agreements with Tennessee; and (4) Columbia Gulf's lease to Tennessee of a portion of Columbia Gulf's South Pass 77 System capacity (South Pass Lease), all as more fully set forth in the application. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Specifically, Columbia Gulf requests authorization to abandon by sale to Tennessee of Columbia Gulf's ownership interest in: (a) The Blue Water System and all offshore laterals and appurtenant facilities contiguous thereto, and the onshore portion of the Blue Water System to Egan, Louisiana, together with the associated rights-of-way and appurtenances; (b) the South Timbalier System and all offshore laterals and appurtenant facilities contiguous thereto, together with the associated rights-of-way and appurtenances; and (c) the South Pass System and all offshore laterals and appurtenant facilities contiguous thereto, together with the associated rights-of-way and appurtenances. In addition, Columbia Gulf states that as a result of the proposed sale, Columbia Gulf requests abandonment of the interruptible transportation services provided through the facilities to be sold; abandonment of Rate Schedules X-8 and X-57 in Columbia Gulf's Volume No. 2 of its FERC Gas Tariff; and abandonment of the lease of capacity to Tennessee (South Pass Lease).
Any initial questions regarding Columbia Gulf's proposal in this application should be directed to counsel for Columbia Gulf, Fredric J. George, Lead Counsel, Columbia Gulf Transmission Company, P.O. Box 1273, Charleston, West Virginia 25325-1273; telephone: (304) 357-2359; fax: (304) 357-3206.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on January 15, 2008, Tennessee Gas Pipeline Company (Tennessee), 1001 Louisiana Street, Houston, Texas 77002, filed an abbreviated application pursuant to section 7(c) of the Natural Gas Act for authorization to acquire certain onshore and offshore natural gas facilities located in the Gulf of Mexico and Louisiana from Columbia Gulf Transmission Company (Columbia Gulf) and Columbia Deep Water Services Company, an affiliate of Columbia Gulf. The facilities include the Blue Water System, the South Timbalier System and the South Pass 77 System, as well as several contiguous pipeline laterals that are connected to these three systems and certain supply laterals, all as more fully set forth in the application. In addition, to the acquisition of facilities, Tennessee seeks authorization pursuant to section 7(b) of the Natural Gas Act to abandon Tennessee's lease of 115,000 Mcf per day of capacity to Columbia Gulf from the terminus of the South Pass 77 System to Columbia Gulf's mainline system at Egan, Louisiana; abandon Rate Schedules X-33 and X-56; and abandon two compressor units at the Pecan Island Facility, each with 20,000 horsepower, and one 4,000 horsepower compressor unit on the Vermilion Block 245 offshore platform. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Any initial questions regarding Tennessee's proposal in this application should be directed to Jacquelyne M. Rocan, Senior Counsel, Tennessee Gas Pipeline Company, 1001 Louisiana Street, Houston, Texas 77002-2511; telephone: (713) 420-4544; fax: (713) 420-1601.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
Take notice that on October 25, 2007, pursuant to Order No. 697, Anthracite Power and Light Company (APL) filed a petition requesting the Commission to classify it as a Category 1 Seller and acknowledge APL as exempt from submitting Triennial Updated Market Analyses. APL also submits a revised tariff sheet pursuant to the Commission's requirements adopted in Order No. 697.
Any person desiring to intervene or to protest this filing must file in
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Western Area Power Administration, DOE.
Notice of Proposed Non-Firm Power Formula Rate.
The Western Area Power Administration (Western) is proposing a minor rate adjustment for non-firm energy from the Stampede Powerplant (Stampede), of the Washoe Project, located in Sierra County, California. The current rate expires September 30, 2010. The proposed formula rate will provide sufficient revenue to repay all annual costs, including interest expense, and repayment of required investment within the allowable period. Western will prepare a brochure that provides detailed information on the formula rate to all interested parties. The proposed formula rate, under Rate Schedule SNF-7, is scheduled to go into effect August 1, 2008, and will remain in effect through July 31, 2013. Publication of this
The consultation and comment period begins today and will end March 7, 2008. Western will accept written comments any time during the consultation and comment period.
Send written comments to Ms. Sonja A. Anderson, Power Marketing Manager, Sierra Nevada Customer Service Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710, e-mail
Mr. Sean Sanderson, Rates Manager, Sierra Nevada Customer Service Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630-4710, (916) 353-4466, e-mail
The proposed formula rate for Stampede's non-firm power is designed to recover an annual revenue requirement that includes investment repayment, interest, purchase power (if applicable), reimbursable operation and maintenance (O&M) expenses, and other expenses.
The Deputy Secretary of Energy approved Rate Schedule SNF-6, a non-firm power formula rate on August 16, 2005.
The proposed formula rate for Stampede power is:
To serve project use loads and effectively market the energy from Stampede, Western has contracted with a third party (Contractor) that provides for an SEEA. The SEEA is an annual energy exchange account for Stampede energy. Under this contract, the Contractor accepts delivery of all energy generated from Stampede and integrates this generation into its resource portfolio. The monthly calculation of revenue from Stampede energy received by the Contractor is credited into the SEEA at the SEEA rate. Western can use the SEEA to benefit project use facilities and market energy from Stampede to CVP preference entities.
In the SEEA, the revenues from sales (generation revenues) made at the SEEA rate are reduced by the project use and station service power costs and SEEA administrative costs. Western applies the ratio of project use costs to the generation revenue recorded in the SEEA to determine a non-reimbursable percentage. One hundred percent minus this non-reimbursable percentage establishes a reimbursable percentage. This reimbursable percentage is then applied to the appropriate power-related costs to determine the reimbursable costs for repayment. The reimbursable costs are then netted against generation revenues made at the SEEA rate. As stipulated under the 2004 CVP Power Marketing Plan, any remaining reimbursable costs, to include interest and annual capital costs, are then transferred to the CVP for incorporation into the CVP PRR.
Since 1994, the Sierra Pacific Power Company (Sierra), through Contract 94-SAO-00010 (Contract 00010), has served as the Contractor for integrating Stampede generation into its resource portfolio and serving station service and project use loads in Sierra's service territory. The current rate schedule (SNF-6) links the current non-firm power formula rate to Contract 00010 and the management of the SEEA. In addition, the index that was used in Rate Schedule SNF-6 to set the “floor rate” was contained in Contract 00010.
On May 10, 2007, the Truckee-Donner Public Utilities District (Truckee Donner) and the City of Fallon (Fallon), two preference customers located within Sierra's control area, entered into a contract with Western that replaces Contract 00010. This new contract with Truckee Donner and Fallon (TDF), Contract 07-SNR-01026 (Contract 01026), uses a market index methodology as the basis for valuing Stampede generation. The effective date of Contract 01026 was August 1, 2007. The change in contractors and the “floor rate” definition makes it necessary for Western to initiate a new rate case to revisit the formula rate. In this proposed rate design, Western is using a general term of “Contractor” in the development of the proposed formula rate and resulting rate schedule in order to provide flexibility in the event the contractor changes in the future.
As indicated above, the non-reimbursable portion of the annual O&M costs are defined as the ratio of project use costs (i.e., costs to serve project use loads) divided by the generation revenue from the Stampede Powerplant (annual generation valuation). Beginning in August 2007, due to the change in the SEEA rate, Western anticipates a reduction in the non-reimbursable percentage for the Washoe Project. This condition will subsequently increase reimbursable costs to the preference power customers. Western estimates that the reimbursable O&M costs could increase between $85,000 and $223,000 annually due to the change in generation revenues.
The proposed formula rate will materially increase the Stampede Revenue for repayment of the Washoe Project. As a general comparison, the floor rate under the terminated Sierra Contract 00010 was $17.89 per megawatt hour (MWh). Western estimates that the floor rate under the current TDF Contract would have ranged from $29.85 to $42.71 per MWh.
Annual Stampede generation usually creates sufficient revenues in the SEEA to pay project use and station service costs. Due to the low floor rate used to credit the SEEA under the Sierra contract, low Stampede generation resulted in insufficient funds in the SEEA in some fall and winter months to cover the payment of project use and station service costs. In these cases, the U.S. Fish and Wildlife Service (FWS) was required to use its Federal appropriation to pay for its project use loads' electric service bills. Under the new contract, Western anticipates that generation valuation will be greater than in the past, which will reduce FWS's burden of payment and protect project use loads from incurring additional costs as a result of its monthly power costs exceeding SEEA balances.
Estimates of revenues and expenses are listed in Table 2.
Western will review the PRR for the Stampede Powerplant semiannually in or around March and September each year. According to the existing rate procedures for the CVP, Western will review the CVP PRR in March and September of each year (71 FR 45821). The CVP rate procedures stipulate that Western will analyze the CVP financial data from October through February, to the extent information is available, as well as forecasted data for March through September. In the case of Stampede, Western will use the most current Power Repayment Study (PRS) and the disposition of the SEEA account up through February and estimate March through September and other financial data, to the extent information is available, to determine the amount of costs to be included in the CVP PRR. In September, when the next review occurs, Western will use the same methodology to include costs in the CVP PRR for the following year. At the time Western makes a final decision regarding this proposed formula rate, to the extent that updated financial data is made available, Western will update the PRS supporting the proposed rate. Based on estimated expenses and projected Stampede revenues, the Stampede Annual Transferred PRR for October 2008 through September 2009 (FY 2009), the first full year of the proposed rate, is estimated to be $480,000.
A comparison of existing and proposed rates and revenue requirement follows:
Stampede Powerplant is a feature of the Washoe Project authorized by Congress in 1956 and is located on the Little Truckee River in Sierra County, California (70 Stat.775 (1956)). The powerplant has a maximum operating capability of 3,650 kilowatts (kW) with an estimated annual generation over the past 12 years of 12-million KWh. Since Stampede Powerplant has an installed capacity of less than 20,000 kW and generates less than 100 million kWh annually for sale, the proposed rate constitutes a minor rate adjustment. Western has determined that it is not necessary to hold a public information or comment forum for this proposed minor rate adjustment as defined by 10 CFR part 903.23(a). After review of public comments, and possible amendments or adjustments, Western will recommend the Deputy Secretary of Energy approve the proposed rate on an interim basis.
Western is establishing the proposed non-firm power formula rate for non-firm energy for the Stampede Powerplant under the Department of Energy Organization Act (42 U.S.C. 7152); the Reclamation Act of 1902 (ch. 1093, 32 Stat. 388), as amended and supplemented by subsequent laws, particularly section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 485h(c)); and other acts that specifically apply to the project involved.
By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Western's Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, to remand, or to disapprove such rates to the Federal Energy Regulatory Commission. Existing Department of Energy (DOE) procedures for public participation in power rate adjustments are published in Title 10 of the Code of Federal Regulations in Part 903.
Pursuant to paragraph 1.5 of Delegation Order No. 00-037.00, Western's Administrator approved the power formula rate for the sale of short-term, non-firm power to Truckee Donner and Fallon effective August 1, 2007. The Administrator's approval provided interim rate authority between the effective date of the new contract (August 1, 2007) and the effective date of the proposed rate (August 1, 2008). The Administrator's approval will expire on July 31, 2008, or upon approval of this proposed rate that supersedes Rate Order No. WAPA-119, whichever occurs earlier.
All brochures, studies, comments, letters, memorandums, or other documents that Western initiates or uses to develop the proposed rates are available for inspection and copying at the Sierra Nevada Regional Office, located at 114 Parkshore Drive, Folsom, California. Many of these documents and supporting information are also available on the Web site under the “Current Rates” section located at http://www.wapa.gov/sn/marketing/rates/.
In compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost.
Additional comments may be submitted on or before March 7, 2008.
Submit your comments, referencing Docket ID No. EPA-HQ-SFUND-2007-0888 to (1) EPA online using
Randy Hippen, Office of Superfund Remediation and Technology Innovation, Mail Code 5204-P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-603-8829; fax number: 703-603-9104; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On September 4, 2007 (72
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-SFUND-2007-0888, which is available for online viewing at
Use EPA's electronic docket and comment system at
EPA Regional offices work with States and Tribes to determine those sites for which the State or Tribe will conduct the Superfund site evaluation activities and the HRS scoring. Under this ICR, State or Tribal authorities will apply the HRS throughout a multi-phase site evaluation process. Evaluation results are used to identify which sites brought to the attention of the Superfund Program may warrant cleanup work and to help determine whether a site is eligible to be included on the National Priorities List (NPL). Only sites on the NPL are eligible for Superfund-financed remedial actions. EPA reimburses the States and Tribes 100 percent of their costs, except for record maintenance. Responses to this collection are required to obtain or retain a benefit.
Environmental Protection Agency (EPA).
Notice; extension of comment period.
EPA issued a notice in the
Comments, identified by docket identification (ID) number EPA-HQ-OPPT-2007-1081, must be received on or before March 12, 2008.
Follow the detailed instructions as provided under
William Wooge, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-8476; e-mail address:
This document extends the public comment period established in the
To submit comments, or access the public docket, please follow the detailed instructions as provided under
Environmental protection, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's amendment to and clarification of the order for the termination of uses, voluntarily requested by the registrant and accepted by the Agency, of products containing the pesticide disulfoton, pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This amendment and clarification follows an October 10, 2007
This amendment is effective February 6, 2008.
Eric Miederhoff, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 347-8028; fax number: (703) 308-7070; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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This notice announces the amendment and clarification of the October 10, 2007 order to amend registrations to terminate uses of certain end-use disulfoton products registered under section 3 of FIFRA. The registration number is listed in Table 1 of this unit.
Table 2 of this unit includes the name and address of record for the registrant of the product in Table 1 of this unit.
On December 15, 2004, EPA published a Notice of Receipt of Request to Voluntarily Terminate Certain Uses (69 FR 75061). That notice contained the statement: “The registrant will retain use of Di-Syston 15G on Fraser fir Christmas trees in North Carolina...” On January 21, 2005, during the allowed timeframe set out in the December 15, 2004 notice, EPA received a withdrawal request from the registrant that replaced an exclusion from termination for Christmas trees in North Carolina with an exclusion from termination for Christmas trees nationwide. EPA did not make note of this withdrawal in its October 10, 2007 order and instead reiterated the statement “The registrant will retain use of Di-Syston 15G on Fraser fir Christmas trees in North Carolina” without mention of how Christmas trees outside of North Carolina would be affected. Today's action is intended to clarify that no use of Di-Syston 15G on Fraser fir Christmas trees has been terminated.
Pursuant to FIFRA section 6(f), EPA hereby amends the October 10, 2007 order to clarify that EPA did not terminate use on Fraser fir Christmas trees outside of North Carolina of disulfoton registrations identified in Table 1 of Unit II. Accordingly, the Agency hereby orders that the use of disulfoton products whose registration is identified in Table I of Unit II for use on Fraser fir Christmas trees is allowed nationwide.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice; extension of comment period.
EPA issued a notice in the
Comments, identified by docket identification (ID) number EPA-HQ-OPPT-2007-1080, must be received on or before March 12, 2008.
Follow the detailed instructions as provided under
William Wooge, Office of Science Coordination and Policy (7201M), Office of Prevention, Pesticides and Toxic Substances, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-8476; e-mail address:
This document extends the public comment period established in the
To submit comments, or access the public docket, please follow the detailed instructions as provided under
Environmental protection, Chemicals, Endocrine disruptors, Pesticides and pests, Reporting and recordkeeping.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before March 7, 2008.
Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest, by one of the following methods:
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The person listed at the end of the pesticide petition summary of interest.
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.
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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.
When submitting comments, please use the docket ID number and the pesticide petition number of interest, as shown in the table.
EPA is printing notice of the filing of pesticide petitions received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that the pesticide petitions described in this notice contain data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. Additional data may be needed before EPA rules on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of each of the petitions included in this notice, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available on-line at
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Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
The Tribal Pesticide Program Council will hold a 2-1/2 day meeting, beginning on March 5, 2008 and ending March 7, 2008. This notice announces the location and times for the meeting and sets forth the tentative agenda topics.
The meeting will be held on March 5-6, 2008 from 8:30 a.m. to 5:30 p.m. and March 7, 2008 from 8:30 a.m. to 12 noon.
To request accommodation of a disability, please contact the person listed under
The meeting will be held at EPA, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA; 4th Floor South Conference Room.
Georgia McDuffie, Field and External Affairs Division, 7506P, Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 605-0195; fax number: (703) 308-1850; e-mail address:
You may be potentially affected by this action if you are interested in TPPC information exchange relationship with EPA regarding important issues related to human health, environmental exposure to pesticides, and insight into EPA's decision-making process, you are invited and encouraged to attend the meetings and participate as appropriate. Potentially affected entities may include, but are not limited to: Those persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug and Cosmetic Act (FFDCA), or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
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1. TPPC State of the Council Report.
2. Tribal Presentations.
3. Pesticide Labeling/Tribal and State Authority.
4. Pesticide Labeling - Unenforceable Label Language.
5. Pesticide Labeling - E-Labeling Update.
6. Reports from the State FIFRA Issues Research Evaluation Group (SFIREG); Pesticide Program Dialogue Committee (PPDC); California Indian Basketweavers Association (CIBA); National Tribal Environmental Council (NTEC); and Alaska Intertribal Council.
7. US EPA Region Reports.
8. Container/Containment Rule, 19(f)
9. Endangered Species Implementation
10. Office of Pesticide Programs (OPP) and Office of Enforcement & Compliance Assurance (OECA)
Environmental protection, [insert additional terms as appropriate].
Wednesday, February 13, 2008, 2 p.m. Eastern Time.
Clarence M. Mitchell, Jr. Conference Room on the Ninth Floor of the EEOC Office Building, 1801 “L” Street, NW., Washington, DC 20507.
The meeting will be open to the public.
1. Announcement of Notation Votes, and
2. FY 2008 State & Local Budget Allocations and Designation of Two New Fair Employment Practice Agencies
In accordance with the Sunshine Act, the meeting will be open to public observation of the Commission's deliberations and voting. (In addition to publishing notices on EEOC Commission meetings in the
Please telephone (202) 663-7100 (voice) and (202) 663-4074 (TTY) at any time for information on these meetings. The EEOC provides sign language interpretation at Commission meetings for the hearing impaired. Requests for other reasonable accommodations may be made by using the voice and TTY numbers listed above.
Federal Communications Commission.
Notice.
On February 1, 2008, the Commission released a public notice announcing the February 22, 2008 meeting and agenda of the North American Numbering Council (NANC). The intended effect of this action is to make the public aware of the NANC's next meeting and agenda.
Friday, February 22, 2008, 9:30 a.m.
Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 Twelfth Street, SW., Suite 5-C162, Washington, DC 20554. Requests to make an oral statement or provide written comments to the NANC should be sent to Deborah Blue.
Deborah Blue, Special Assistant to the Designated Federal Officer (DFO) at (202) 418-1466 or
Released: February 1, 2008. The North American Numbering Council (NANC) has scheduled a meeting to be held Friday, February 22, 2008, from 9:30 a.m. until 5 p.m. The meeting will be held at the Federal Communications Commission, Portals II, 445 Twelfth Street, SW., Room TW-C305, Washington, DC. This meeting is open to members of the general public. The FCC will attempt to accommodate as many participants as possible. The public may submit written statements to the NANC, which must be received two business days before the meeting. In addition, oral statements at the meeting by parties or entities not represented on the NANC will be permitted to the extent time permits. Such statements will be limited to five minutes in length by any one party or entity, and requests to make an oral statement must be received two business days before the meeting.
Adjourn no later than 5 p.m.
*The Agenda may be modified at the discretion of the NANC Chairman with the approval of the DFO.
Federal Communications Commission.
Federal Election Commission.
Notice of filing dates for special election.
Louisiana has scheduled special elections to fill the U.S. House of Representatives seat in the Sixth Congressional District being vacated by Representative Richard H. Baker. There are three possible special elections, but only two may be necessary.
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Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463; Telephone: (202) 694-1100; Toll Free (800) 424-9530.
All principal campaign committees of candidates
If only two elections are held, all principal campaign committees of candidates participating in the Louisiana Special Primary and Special General Elections shall file a 12-day Pre-Primary Report on February 25, 2008; a Pre-General Report on March 24, 2008; and a Post-General Report on May 5, 2008. (See chart below for the closing date for each report.)
If three elections are held, all principal campaign committees of candidates
All principal campaign committees of candidates participating in the Louisiana Special Primary, Special Runoff and Special General Elections shall file a 12-day Pre-Primary Report on February 25, 2008; a Pre-Runoff Report on March 24, 2008; a Pre-General Report on April 21, 2008; and a Post-General Report on June 2, 2008. (See chart below for the closing date for each report.)
Political committees that file on a quarterly basis during 2008 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Louisiana Special Primary, Runoff or General Elections by the close of books for the applicable report(s). Consult the chart below that corresponds to the committee's situation for close of books and filing date information.
Committees filing monthly that support candidates in the Louisiana Special Primary, Special Runoff or Special General Elections should continue to file according to the monthly reporting schedule.
Additional disclosure information in connection with the Louisiana Special Election may be found on the FEC Web site at
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than February 21, 2008.
Board of Governors of the Federal Reserve System, February 1, 2008.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 3, 2008.
Board of Governors of the Federal Reserve System, February 1, 2008.
This notice corrects a notice (FR Doc. E8-1202 published on page 4573 of the issue for Friday, January 25, 2008.
Under the Federal Reserve Bank of Kansas City heading, the entry for HOTC, Inc., Wray, Coloardo, is revised to read as follows:
Comments on this application must be received by February 19, 2008.
Board of Governors of the Federal Reserve System, February 1, 2008.
Meeting announcement.
This notice announces the meeting date for the 20th meeting of the American Health Information Community in accordance with the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.). The American Health Information Community will advise the Secretary and recommend specific actions to achieve a common interoperability framework for health information technology (IT).
Rosen Centre Hotel, Salon 9 and 10, 9840 International Drive, Orlando, FL 32819. This meeting will be held in conjunction with the Healthcare Information and Management Systems Society (HIMSS) annual conference.
The meeting will include presentations by the Confidentiality, Privacy and Security Workgroup and the Personalized Healthcare Workgroup on Recommendations to the Community; an update on the Nationwide Health Information Network (NHIN); and an update on the AHIC Successor.
Visit
If you have special needs for the meeting, please contact (202) 690-7151.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces a solicitation for up to six additional hospitals to participate in the Rural Community Hospital Demonstration Program for the remainder of the 5-year time period allowed by section 410A of
The applications should be
Please allow sufficient time for mailed information to be received in a timely manner in the event of delivery delays. Because of staffing and resources limitations, and because we require an application containing an original signature, we cannot accept applications by facsimile (Fax) transmission.
Sid Mazumdar at (410) 786-6673 or by e-mail at:
Section 410A(a) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. 108-173) (MMA) requires the Secretary to establish a demonstration to test the feasibility and advisability of establishing “rural community hospitals” for Medicare payment purposes for covered hospital inpatient services furnished to Medicare beneficiaries. A rural community hospital, as defined in section 410A(f)(1) of the MMA, is a hospital that—
• Is located in a rural area (as defined in section 1886(d)(2)(D) of the Social Security Act (the Act) (42 U.S.C. 1395ww(d)(2)(D))) or treated as being so located pursuant to section 1886(d)(8)(E) of the Act (42 U.S.C. 1395ww(d)(8)(E));
• Has fewer than 51 acute care inpatient beds, as reported in its most recent cost report;
• Makes available 24-hour emergency care services; and
• Is not eligible for critical access hospital (CAH) designation, or has not been designated a CAH under section 1820 of the Act.
Section 410A(a)(4) of the MMA specifies that the Secretary is to select for participation no more than 15 rural community hospitals in rural areas of States that the Secretary identifies as having low population densities. Using 2002 data from the U.S. Census Bureau, we identified the 10 States with the lowest population densities in which rural community hospitals must be located to participate in the demonstration: Alaska, Idaho, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Utah, and Wyoming. (Source: U.S. Census Bureau, Statistical Abstract of the United States: 2003).
The demonstration is designed to test the feasibility and advisability of reasonable cost reimbursement for inpatient services to small rural hospitals. The demonstration is aimed at increasing the capability of the selected rural hospitals to meet the needs of their service areas.
Section 410A(a)(5) of the MMA states the Secretary shall conduct the demonstration program for a 5-year period. We originally solicited applicants for the demonstration in May 2004; 13 hospitals began participation with cost report years beginning on or after October 1, 2004. Four of these 13 hospitals have withdrawn from the program and have become CAHs. For the remaining 9 participating hospitals, the demonstration will end in 2010 when each hospital has completed its fifth cost report year.
This notice announces the solicitation for up to six additional hospitals to participate in the Rural Community Hospital Demonstration Program. Hospitals that enter the demonstration under this solicitation will be able to participate for no more than 2 years. We will adhere to the requirement under section 410A of the MMA to limit the demonstration to 5 years, that is, the program will end in 2010.
Section 410A of the MMA requires that “in conducting the demonstration program under this section, the Secretary shall ensure that the aggregate payments made by the Secretary do not exceed the amount which the Secretary would have paid if the demonstration program under this section was not implemented.” In order to achieve budget neutrality for this demonstration program for FYs 2005, 2006, 2007, and 2008, we adjusted the national hospital inpatient prospective payment system (IPPS) rates by an amount sufficient to offset the added costs of this demonstration program. We will present an estimate of the amount needed to offset the additional costs incurred under the demonstration in FY 2009, including the cost of newly selected rural community hospitals, in the FY 2009 IPPS proposed rule.
Hospitals selected for participation in the demonstration will receive payment for covered inpatient services, with the exclusion of services furnished in a psychiatric or rehabilitation unit that is a distinct part of the hospital, using the following rules. For discharges occurring—
• In the first cost reporting period on or after the implementation of the program, their reasonable costs for covered inpatient services; or
• During the second or subsequent cost reporting period, the lesser of their reasonable costs or a target amount. The target amount in the second cost reporting period is defined as the reasonable costs of providing covered inpatient hospital services in the first cost reporting period, increased by the IPPS update factor (as defined in section 1886(b)(3)(B) of the Act) for that particular cost reporting period. The target amount in subsequent cost reporting periods is defined as the preceding cost reporting period's target amount increased by the IPPS update factor for that particular cost reporting period.
Covered inpatient hospital services means inpatient hospital services (defined in section 1861(b) of the Act) and including extended care services furnished under an agreement under section 1883 of the Act.
To participate in this demonstration, a hospital must be located in one of the identified States and meet the criteria for a rural community hospital. Eligible hospitals that desire to participate in the demonstration must submit an application to CMS. Information about the demonstration and details on how to apply can be found on the CMS Web site at
The information collection requirements contained in this notice are subject to the Paperwork Reduction Act of 1995 (PRA). As discussed in section II.B. of this notice, a hospital must submit the required information on the cover sheet of the CMS Medicare Waiver Demonstration Application to receive consideration by the technical review panel. The burden associated with voluntary requirement is the time and effort necessary to complete the Medicare Waiver Demonstration Application and submit the information
Section 410A of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173. (Catalog of Federal Domestic Assistance Program No. 93.773 Medicare—Hospital Insurance Program; and No. 93.774, Medicare—Supplementary Medical Insurance Program).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance document entitled “Fish and Fisheries Products Hazards and Controls Guidance, Third Edition June 2001: Letter to Seafood Processors that Purchase Grouper, Amberjack and Related Predatory Reef Species Captured in the Northern Gulf of Mexico.” The guidance sets forth the agency's recommendations for ensuring the safety of grouper, amberjack, and related predatory reef species captured in the northern Gulf of Mexico with respect to ciguatera fish poisoning (CFP). The guidance is in response to recent cases of CFP that have occurred in the United States.
This guidance is final February 6, 2008. Submit written or electronic comments on the guidance document at any time.
Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Byron Truglio, Center for Food Safety and Applied Nutrition (HFS-325), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 301-436-1420.
FDA is announcing the availability of a guidance document entitled “Fish and Fisheries Products Hazards and Controls Guidance, Third Edition June 2001: Letter to Seafood Processors that Purchase Grouper, Amberjack and Related Predatory Reef Species Captured in the Northern Gulf of Mexico.” The purpose of the document is to revise guidance provided to industry for processing potentially ciguatoxic fish species captured in the northern Gulf of Mexico which are subject to the provisions of the Hazard Analysis and Critical Control Point regulation for seafood (21 CFR part 123) (the seafood HACCP regulation). This guidance is in response to recent CFP outbreaks that have been traced to fish captured in an area in the United States where ciguatera was previously extremely rare. CFP is caused by consumption of fish that have eaten toxic marine algae directly or that have eaten other toxin-contaminated fish. CFP can result in gastrointestinal, cardiovascular, and neurological symptoms. In severe cases, recurring neurological symptoms can persist for months to years.
FDA is issuing this guidance as level 1 guidance consistent with FDA's good guidance practices regulation (§ 10.115 (21 CFR 10.115)). Consistent with FDA's good guidance practices regulation, the agency will accept comment, but is implementing the guidance document immediately in accordance with § 10.115(g) (2) because the agency has determined that prior public participation is not feasible or appropriate in light of the need to respond expeditiously to the recent cases of CFP. The guidance represents the agency's current thinking on CFP from fish in the Northern Gulf of Mexico. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations. This guidance modifies our previous guidance on this subject (See “Fish and Fisheries Products Hazards and Controls Guidance, Third Edition June 2001”
Interested persons may submit to the Division of Dockets Management (see
Please note that on January 15, 2008, the FDA Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic submissions will be accepted by FDA through FDMS only.
Persons with access to the Internet may obtain the guidance document at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is providing notice of a memorandum of understanding (MOU) between FDA and the National Institutes of Health (NIH). This MOU establishes the terms of collaboration between the two Federal agencies to develop a unified Federal approach to adverse event (AE) reporting. Specifically, FDA and NIH will collaborate in development of a project that will result in a web-based method for consumers, health professionals, investigators, sponsors, and other parties to electronically submit AE reports. The project includes the development of at least two products: (1) A Rational Questionnaire, an interactive help system that will assist reporters of information in determining what specific data need to be submitted and to whom, and (2) a prototype to test the feasibility of a central, Federal web-based portal to provide direct, seamless, online submission of adverse event reports to appropriate agencies.
The agreement became effective September 27, 2007.
Daryl Allis, OC/Office of Critical Path Programs, Food and Drug Administration, 5600 Fishers Lane (HF-18), Rockville, MD 20785, 301-827-7868.
In accordance with 21 CFR 20.108(c), which states that all written agreements and MOUs between FDA and others shall be published in the
Periodically, the Health Resources and Services Administration (HRSA) publishes abstracts of information collection requests under review by the Office of Management and Budget (OMB), in compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). To request a copy of the clearance requests submitted to OMB for review, call the HRSA Reports Clearance Office on (301)-443-1129.
The following request has been submitted to the Office of Management and Budget for review under the Paperwork Reduction Act of 1995:
HRSA's Division of Independent Review (DIR) is responsible for carrying out the independent and objective review of all eligible applications submitted to HRSA. DIR ensures that the independent review process is efficient, effective, economical, and complies with statutes, regulations, and policies. The review of applications is performed by experts knowledgeable in the field of endeavor for which support is requested and is advisory to individuals in HRSA responsible for making award decisions.
To streamline the selection and assignment of expert grant reviewers to objective review committees, HRSA utilizes a Web-based data collection form to gather critical reviewer information. The
The estimated annual burden is as follows:
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to the desk officer for HRSA, either by e-mail to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Heart, Lung, and Blood Institute Special Emphasis Panel, February 20, 2008, 8 a.m. to February 21, 2008, 1 p.m., Courtyard Marriott, 2899 Jefferson Davis Highway, Arlington, VA, 22202 which was published in the
The meeting dates were changed from February 20-21, 2008 to February 21-22, 2008. The rest of the information remains the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as a sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, this request for comments announces that the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) requesting a revision of their approval for the following collection of information: 1625-0003, Coast Guard Boating Accident Report Form (CG-3865). Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
Please submit comments on or before March 7, 2008.
To prevent duplicate submissions to the docket [USCG-2007-0008] or OIRA, please submit your comments and related material by only one of the following means:
(1)
(2)
(3) Fax. (a) To DMF at 202-493-2251 (b) To: OIRA at 202-395-6566. To ensure your comments are received in time, mark the fax to the attention of Mr. Nathan Lesser, Desk Officer for the Coast Guard.
The DMF maintains the public docket for this notice. Comments and material received from the public, as well as documents mentioned in this notice as being available in the docket, will
A copy of the complete ICR is available through this docket on the Internet at
Mr. Arthur Requina, Office of Information Management, telephone 202-475-3523 or fax 202-475-3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202-493-0402, for questions on the docket.
The Coast Guard invites comments on whether this information collection request should be granted based on it being necessary in the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the collections; (2) the accuracy of the estimated burden of the collections; (3) ways to enhance the quality, utility, and clarity of information subject to the collections; and (4) ways to minimize the burden of collections on respondents, including the use of automated collection techniques or other forms of information technology.
Comments to DMF or OIRA must contain the OMB Control Number of the ICR addressed. Comments to DMF must contain the docket number, [USCG 2007-0008]. For your comments to OIRA to be considered, it is best if they receive them on or before the March 7, 2008.
The Coast Guard and OIRA will consider all comments and material received during the comment period. We may change the documents supporting this collection of information or even the underlying requirements in view of them.
This request provides a 30-day comment period required by OIRA. The Coast Guard has published the 60-day notice (72 FR 59101, October 18, 2007) required by 44 U.S.C. 3506(c)(2). That notice elicited comments from five individuals/organizations.
The Coast Guard issued an OMB Information Collection supporting statement for its Boating Accident Report form (CG-3865) for public comment on October 18, 2007. The proposed information collection activities are based on comments received on the currently approved form and input from state boat accident reporting authorities. To develop this new form, the Coast Guard consulted with a nationally known expert in forms design, who conducted a usability test to detect flaws. The test provided information on respondents' views on the present and recommended forms. The current proposed form is based on the results of the usability test and the comments received from the 60-day notice.
Following the initial 60-day period during which the public was able to comment on the ICR, the Coast Guard received five comments. We reviewed each of these comments with diligence, and made some changes to the form where it was deemed appropriate. A summary of the public comments, our responses to those comments, and the changes that were made to the form are summarized below.
• Several commenters stated that this form is much longer than some of those from the state.
• Some commenters suggested combining “Accident Details—Other Key People” and “Serious Injuries and Deaths” sections.
• One commenter noted that the “For State Agency Use Only” section would not be used.
• One commenter suggested condensing the two “Report Submitted” (on pages one and six) sections into one.
• One commenter suggested there be separate areas that apply first to the accident itself (date, time, location, weather, type/cause of accident), and then areas that apply to the operator, vessel, and people on board.
• A commenter stated that mixing questions, of which some relate to all people on the vessel and some only to a single vessel, is confusing and inconsistent.
• A commenter noted that some of the choices in the “Contributing Factors” section need to be better defined to prevent confusion.
• One commenter suggested increasing the data collection fields for the second operator, which would provide additional information.
We understand the concerns expressed in these comments, but all of the information is pertinent. The information provided on this form will be used for statistical and analysis purposes. Based on reporting requirements in 33 CFR part 173, the operator of vessel(s) involved in an accident is required to fill out a separate report form. In addition, this proposed form underwent a usability test, and
• Several commenters suggested including the operator/owner information found on the last page on the first one as well.
• A commenter proposed breaking out information regarding the number of people on board, towed, and wearing life jackets.
• One commenter recommended increasing the size of the “Accident Description” box.
• A commenter stated that the “Report Submitted By” section should include Boat Operator/Owner, or Accident Investigator, providing the latter a useful form if the former is the only one on board and dies in the accident.
• One commenter proposed including engine make, serial number, and total number of engines in the “Engine” section.
• A commenter suggested that we should collect whether a fire extinguisher was used and what type.
• One commenter stated that “Size of Vessel” information is not general knowledge and therefore, it should be deleted.
• A commenter expressed concern regarding the integrity of information regarding alcohol and drug usage as contributing factors.
• Several commenters suggested modifications to the “Machinery/Equipment Failure” and “Contributing Factors” sections. These included reorganizing the options/instructions regarding the sections.
• One commenter suggested including Pleasure Boating in the “Operator/Passenger Activities” section.
• A commenter proposed listing Recreational above Commercial in the “Operator/Passenger Activities” section.
• Another commenter suggested that in the “Boat Operations” section Cruising, Changing Direction, Changing Speed should be the first choices, and listed in that order.
• A commenter stated that in the “Accident Events” section, there is no option for Person Struck by Own Boat.
• A commenter suggested deleting the choice “Drifting” from the “Operator/Passenger Activities” section and consider the choices “kite boarding, windsurfing, parasailing, and racing.”
• A commenter suggested that in addition to the “Accident Details—Injured People Receiving or in Need of Treatment Beyond First Aid” and “Accident Details—Deaths/Disappearances,” add “people being towed by your boat,” since this would clearly indicate those not being towed.
• Several commenters proposed including more than one space for additional parties in the “Injured Persons” and the “Person Who Died/Disappeared” section.
• One commenter expressed concern with allowing laypersons to determine cause of injuries as required in “Injury Details” and “Nature of Primary Injury.”
• One commenter suggested placing the “Accident Details—Other Key People” section prior to collection of data on the operator, owner, and injured parties makes the form confusing.
• In the “Operator Safety Measures” section, a commenter proposed adding a “Not Equipped” option under “An engine cut-off switch (Lanyard) if equipped.”
• A commenter expressed concern that the “Operator Instruction” section is confusing, expressing particular concern with the internet field.
•
• A commenter suggested including “Safety Lanyard” or “Wireless Emergency Shutoff Device” to account for wireless instruments now being used for engine shutoff.
• One commenter suggested that the signature of “Person Submitting this Report” should be more obvious.
• Several commenters proposed that the “Boat Operator” information be collected on page one and that the “Boat Owner” information be collected on both page one/six.
• A person dies or is injured and requires medical treatment beyond first aid;
• Damage is incurred to either the vessel or other property damages of $2,000 or more; or
• A person disappears from the vessel under circumstances indicating death or injury.
States are required to forward copies of the reports or electronically transmit accident data to the Coast Guard within 30 days of receipt as prescribed in 33 CFR 174.121. The accident report data and statistical information obtained from submissions by the State authorities are used by the Coast Guard in the compilation of national recreational boating accident statistics.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Announcement of Fiscal Year 2007 awards.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this document notifies the public of funding awards for Fiscal Year (FY) 2007 to housing agencies (HAs) under the Section 8 housing choice voucher program. The purpose of this notice is to publish the names, addresses, and the amount of the awards to HAs for non-competitive funding awards for housing conversion actions, public housing relocations and replacements, moderate rehabilitation replacements, and HOPE VI voucher awards.
David A. Vargas, Director, Office of Housing Voucher Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4226, Washington, DC 20410-5000, telephone (202) 708-2815. Hearing- or speech-impaired individuals may call HUD's TTY number at (800) 927-7589. (Only the “800” telephone number is toll-free.)
The regulations governing the housing choice voucher program are published at 24 CFR 982. The regulations for allocating housing assistance budget authority under Section 213(d) of the Housing and Community Development Act of 1974 are published at 24 CFR part 791, Subpart D.
The purpose of this rental assistance program is to assist eligible families to pay their rent for decent, safe, and sanitary housing. The FY 2007 awardees announced in this notice were provided Section 8 funds on an as-needed, non-competitive basis, i.e., not consistent with the provisions of a Notice of Funding Availability (NOFAs). Tenant protection voucher awards made to PHAs for program actions that displace families living in public housing were made on a first-come, first-served basis in accordance with the non-competitive awards preference categories announced in PIH Notice 2007-10 Voucher Funding in Connection with the Demolition or Disposition of Occupied Public Housing Units. Announcements of awards provided under the NOFA process for mainstream housing and designated housing programs will be published in a separate
Awards published under this notice were provided (1) to assist families living in HUD-owned properties that are being sold; (2) to assist families affected by the expiration or termination of their project-based Section 8 and moderate rehabilitation contracts; (3) to assist families in properties where the owner has prepaid the HUD mortgage; (4) to provide relocation housing assistance in connection with the demolition of public housing; (5) to provide replacement housing assistance for single room occupancy (SRO) units that fail housing quality standards (HQS); and (6) to assist families in public housing developments that are scheduled for demolition in connection with a HUD-approved HOPE VI Revitalization or Demolition Grant. Administrative fees were added to each assignment for the administration of housing choice vouchers awarded under this notice. In addition, special housing fees were included for applicable Housing tenant protection awards.
A total of $149,146,013 in budget authority for 25,292 housing choice vouchers was awarded to recipients under all of the above-mentioned categories. Of the total amount awarded, $3,112,902 is provided from the HOPE VI account.
In accordance with Section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the names, addresses, and amounts of those awards as shown in Appendix A.
Fish and Wildlife Service, Interior.
Notice of availability of draft revised marine mammal stock assessment reports for three stocks of northern sea otters in Alaska; request for comments.
In accordance with the Marine Mammal Protection Act (MMPA), the Fish and Wildlife Service (Service) has developed draft revised marine mammal stock assessment reports for the three stocks of northern sea otters (Enhydra lutris kenyoni) in Alaska, which are available for public review and comment.
Comments must be received by May 6, 2008.
Copies of the draft revised stock assessment reports for northern sea otters in Alaska are available from the Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503 (800) 362-5148.
If you wish to submit comments on the draft revised stock assessment reports for northern sea otters in Alaska, you may do so by either of the following methods:
1. You may submit written comments to the Manager, U.S. Fish and Wildlife Service, Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503.
2. You may hand-deliver written comments to our Marine Mammals Management Office at the above address during normal business hours from 8 a.m. to 4:30 p.m. Monday through Friday, or you may fax your comments to 907/786-3816.
One of the goals of the MMPA is to ensure that stocks of marine mammals occurring in waters under the jurisdiction of the United States do not experience a level of human-caused mortality and serious injury that is likely to cause the stock to be reduced below its optimum sustainable population level (OSP). OSP is defined as “* * * the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.”
To help accomplish the goal of maintaining marine mammal stocks at their OSPs, section 117 of the MMPA (16 U.S.C. 1361-1407) requires the Service and the National Marine Fisheries Service (NMFS) to prepare stock assessment reports for each marine mammal stock that occurs in waters under the jurisdiction of the United States. These stock assessments are to be based on the best scientific information available and are, therefore, prepared in consultation with established regional scientific review groups. Each stock assessment must include: (1) A description of the stock and its geographic range; (2) minimum population estimate, maximum net productivity rate, and current population trend; (3) estimate of human-caused mortality and serious injury; (4) commercial fishery interactions; (5) status of the stock; and (6) potential biological removal level (PBR). The PBR is defined as “* * * the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its OSP.” The PBR is the product of the minimum population estimate of the stock (N
Section 117 of the MMPA also requires the Service and the NMFS to review and revise the stock assessment reports: (a) At least annually for stocks that are specified as strategic stocks; (b) at least annually for stocks for which significant new information is available; and (c) at least once every 3 years for all other stocks.
A strategic stock is defined in the MMPA as a marine mammal stock: (A) For which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), within the foreseeable future; or (C) which is listed as a threatened or endangered species under the Endangered Species Act, or is designated as depleted under the MMPA.
A summary of the draft revised stock assessment reports is presented in Table 1. The table lists the stock=s N
In accordance with the MMPA, a list of the sources of information or public reports upon which the assessment is based is included in this notice.
Bureau of Land Management, Interior.
Proposed addition of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, (5 U.S.C. 552a), notice is hereby given that the Department of the Interior proposes to establish a new system of records, INTERIOR, BLM-40, to be maintained by the Bureau of Land Management (BLM).
The Department of the Interior is establishing a new system of records to manage the consolidated database of qualifications of Federal, State, local, contractor, volunteer, and special group wildland firefighters. This system will provide a single consolidated database for access to determine if personnel are qualified for specific positions on incident response teams. The typical incident for which the information would be used is on wildland fire support. However, other types of incidents do occur in which qualified personnel are needed and requested by other Federal Agencies, such as the Federal Emergency Management Agency, and by states for emergency situations such as hurricanes, floods, and human-caused disasters.
The creation and the maintenance of this system are authorized in accordance with provisions of 43 U.S.C. 1811e, 42 U.S.C. 1856a, 15 U.S.C. 2201, 5 U.S.C. 4118, 5 U.S.C. 3101, 16 U.S.C. 551C, 43 U.S.C. 1457, EO 10561, 620 DM 1.
5 U.S.C. 552a(e)(11) requires that the public be provided a 30 day period in which to comment on the agency's intended use of the information in the system of records. The Office of Management and Budget, in its Circular A-130, requires an additional 10 day period (for a total of
Michael Morgen, Business Steward, Bureau of Land Management, Incident Qualifications and Certification System, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
This system will integrate information from systems currently maintained by agencies involved with incident support and emergency management (Department of Agriculture, Department of the Interior, and state and local agency systems) that maintain qualification data on individuals involved in firefighting. This system will provide a time-efficient method for the participating agencies and offices for determining qualifications and status of personnel to insure that qualified personnel are assigned to incidents in order to protect lives and property. This means that when a resource order is sent out requesting a Division Supervisor, that only persons with current qualifications that have met all of the prerequisite training will be identified and referred to the requesting agency.
Incident Qualification and Certification System (IQCS)—Interior, BLM-40.
(1) The consolidated central database is located at the U.S. Department of Agriculture (USDA) hosting facility, National Information Technology Center, 8930 Ward Parkway, Kansas City, Missouri 64114. Information from this system is accessed by cooperating agencies and field offices through Web secured Web links.
(2) Records from this system (paper and electronic) are managed by the bureau and office sites listed below, located at the National Interagency Fire Center, and involved in the Federal fire program:
(a) Bureau of Indian Affairs, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
(b) U.S. Fish and Wildlife Service, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
(c) Bureau of Land Management, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
(d) National Park Service, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
(e) U.S. Forest Service, 3833 S. Development Avenue, Boise, Idaho 83705-5354.
All federal, state, local, special interest group members, and contractor employees with wild land fire qualifications who voluntarily provide information to qualify for fire assignments.
Name of employee; date of birth, Social Security Number, office address and phone number, physical clearance status, pertinent education history, pertinent work or skills experience; listing of special qualifications; licenses and certificates held; and training completed. Firefighters with certain qualifications and past a certain age must have a medical clearance before they can take the fitness test. The IQCS only stores the status of the medical test and whether the firefighter has “cleared” or “not cleared” the medical test. Training scores may be entered as “pass” or “fail” or the letter grade for the class—this is an optional field.
5 U.S.C. 4118, 3101; 16 U.S.C. 551C; 43 U.S.C. 1457; EO 10561.
(1) To support management officials for any agency responsible for managing an incident by insuring that only qualified personnel are assigned to wild and prescribed fires, natural disasters, and responses to terrorist acts, in positions that they are qualified to perform, thus reducing the potential for loss of property or life due to having unqualified personnel assigned to incident positions. The participating agencies are the USDA-Forest Service, four DOI bureaus; the Bureau of Land Management, National Park Service, Fish and Wildlife Service and Bureau of Indian Affairs (BIA), and The Nature Conservancy. Some Tribal information is included in accordance with BIA agreements. No states participate in the application.
(2) To support home unit (employing unit) coordinators updating the database with information about training course completion, task book completion, qualifications obtained, and positions that individuals are no longer qualified to perform. Each participating agency or bureau maintains their own portion of the information within IQCS.
The IQCS database contains data elements that require review under the Privacy Act (PA) disclosure requirements at 5 U.S.C. 552a (b) and the Freedom of Information Act (FOIA), 5 U.S.C. 552, before any information will be released. Rules of Behavior documentation is in accordance with BLM policy and is available from the specific project files. Applicable Privacy Act warning statements are placed on all information printouts of data from the system. Since each cooperating agency has access to the records of their personnel contained in the system, any requests for that information is the responsibility of the agency to which the data in question belongs.
(1)(a) To any of the following entities or individuals, when the circumstances set forth in paragraph (b) are met:
(i) The U.S. Department of Justice (DOJ);
(ii) A court or an adjudicative or other administrative body;
(iii) A party in litigation before a court or an adjudicative or other administrative body; or
(iv) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or pay for private representation of the employee:
(b) When:
(i) One of the following is a party to the proceeding or has an interest in the proceeding:
(A) DOI or any component of DOI;
(B) Any other Federal agency appearing before the Office of hearings and Appeals;
(C) Any DOI employee acting in his or her official capacity;
(D) Any DOI employee acting in his or her individual capacity if DOI or DOJ has agreed to represent that employee or
(E) The United States, when DOJ determines that DOI is likely to be affected by the proceeding; and
(2) To a congressional office in response to a written inquiry that an individual covered by the system, or the heir or such individual if the covered individual is deceased, has made to the office.
(3) To any criminal, civil, or regulatory law enforcement authority (whether federal, state, territorial, local, tribal, or foreign) when a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature, and the disclosure is compatible with the purpose for which the records were compiled.
(4) To an official of another federal agency to provide information needed in the performance of official duties related to reconciling or reconstructing data files or to enable that agency to respond to an inquiry by the individual to whom the record pertains.
(5) To federal, state, territorial, local, tribal, or foreign agencies that have requested information relevant or necessary to the hiring, firing or retention of an employee or contractor, or the issuance of a security clearance, license, contract, grant, or other benefit, when the disclosure is compatible with the purpose for which the records were compiled.
(6) To representatives of the National Archives and Records Administration to conduct records management inspections under the authority of 44 U.S.C. 2904 and 2906.
(7) To state and local governments and tribal organizations to provide information needed in response to court orders and/or discovery purposes related to litigation, when the disclosure is compatible with the purpose for which the records were compiled.
(8) To an expert, consultant, or contractor (including employees of the contractor) of DOI that performs services requiring access to these records on DOI's behalf to carry out the purposes of the system.
(9) To appropriate agencies, entities, and persons when:
(a) It is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; and
(b) The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interest, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(c) The disclosure is made to such agencies, entities and persons who are reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(10) To the Office of Management and Budget during the coordination and clearance process in connection with legislative affairs as mandated by OMB Circular A-19.
(11) To the Department of Treasury to recover debts owed to the United States.
(12) To the news media when the disclosure is compatible with the purpose for which the records were compiled.
Disclosure to consumer reporting agencies: Pursuant to 5 U.S.C. 552a(b)(12), records can be disclosed to consumer reporting agencies as they are defined in the Fair Credit Reporting Act.
Paper records are stored in file folders, in locked file cabinets until data input is verified. Any paper records that are not input into the system will be maintained in secured files. Electronic records are stored on disk, system hard drive, tape or other appropriate media. Individual data is retained for a minimum of three years in an Active status—during which an individual employee is being deployed in the position(s) for which he or she is qualified. After three years of inactivity (no deployments), the individual's identifying information is moved into an Inactive repository. Upon two additional years of inactivity (for a total of five years), the individual's information is moved into a Data Archive.
Records can be retrieved by the name or a system-generated employee identifier for the individual, and only by the agency responsible for that individual.
Access to records is limited to authorized personnel. Paper records are maintained in locked file cabinets. Electronic records are maintained with safeguards meeting minimum security requirements of 43 CFR 2.51. A security plan was developed to prevent unauthorized access to the system and in transmission of the data. A Privacy Impact Assessment was completed and signed in April 2004, and reviewed for validity in October 2005. This Assessment evaluated the privacy risks and ensured appropriate safeguards were in place.
BLM Manual 1220, Appendix 2, Schedule 1, Item 43, provides the disposition instructions for these records.
(1) Fire IT Business Systems Unit Leader, National Interagency Fire Center, Bureau of Land Management, U.S. Department of the Interior, 3833 S. Development Avenue, Boise, ID 83705-5354.
(2) Bureau fire or personnel officers:
(a) Director of Fire and Aviation Management, Bureau of Indian Affairs, 3833 S. Development Avenue, Boise, ID 83705-5354.
(b) Personnel Officer, U.S. Geological Survey, National Center, 12201 Sunrise Valley Drive, Reston, VA 22092.
(c) Director of Fire Management, U.S. Fish and Wildlife Service, 3833 S. Development Avenue, Boise, ID 83705-5354.
(d) Labor Relations Officer, Bureau of Reclamation, P.O. Box 25001, Denver, CO 80225.
(e) Deputy Assistant Director, Fire and Aviation, Bureau of Land Management, 3833 S. Development Avenue, Boise, ID 83705-5354.
(f) Chief, Fire and Aviation Division, National Park Service, 3833 S. Development Avenue, Boise, ID 83705-5354.
(g) Personnel Officer, Minerals Management Service, Personnel Division, 1110 Herndon Parkway, Herndon, VA 22070.
(h) Personnel Officer, Office of Surface Mining, Division of Personnel, 1951 Constitution Avenue, NW., Washington, DC 20245.
(i) Director of Operations, U.S. Forest Service, 3833 S. Development Avenue, Boise, ID 83705-5354.
An individual requesting notification of the existence of records on him or her, should address his/her request to the appropriate System Manager above. The request must be in writing, contain the requester's original signature, and comply with the content requirements of 43 CFR 2.60.
An individual requesting access to records maintained on him or her,
An individual requesting amendment of a record maintained on him or her, should address his/her request to the appropriate System Manager above. The request must be in writing, contain the requester's original signature, and comply with the content requirements of 43 CFR 2.71.
Information collected and stored in this system is submitted by the individuals to whom the records pertain.
None.
Bureau of Land Management, Interior.
Notice of Reinstatement of Terminated Oil and Gas Lease.
Under the Class II provisions of Title IV, Public Law 97-451, the Bureau of Land Management (BLM) received a Petition for Reinstatement of Oil and Gas Lease TXNM 106958 from the lessee, Sun-West Oil and Gas Inc., for lands in Trinity County, Texas. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Lourdes B. Ortiz, BLM, New Mexico State Office, at (505) 438-7586.
No valid lease has been issued that affects the lands. The lessee agrees to new lease terms for rentals and royalties of $10.00 per acre or fraction thereof, per year, and 16
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of Reinstatement of Terminated Oil and Gas Lease.
Under the Class II provisions of Title IV, Public Law 97-451, the Bureau of Land Management (BLM) received a Petition for Reinstatement of Oil and Gas Lease TXNM 106959 from the lessee, Sun-West Oil and Gas Inc., for lands in Trinity County, Texas. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Lourdes B. Ortiz, BLM, New Mexico State Office, at (505) 438-7586.
No valid lease has been issued that affect the lands. The lessee agrees to new lease terms for rentals and royalties of $10.00 per acre or fraction thereof, per year, and 16
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Proposed supplementary rules for public lands within the State of Colorado.
The Bureau of Land Management (BLM) is proposing these supplementary rules for public lands within the State of Colorado, relating to camping. These rules extend the time period and distance the camping public must move once the current 14-day stay limit is reached. These supplementary rules are needed to protect natural resources and provide for public health and safety. They are based upon existing regulations that address camping and residency, and update existing supplementary rules specific to camping stay limits. These supplementary rules further promote consistency between the BLM and similar rules of other natural resource agencies, including the U.S. Forest Service.
You should submit your comments by March 7, 2008.
You may submit comments by the following methods:
Mail or hand-delivery: Bureau of Land Management, Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215. Internet e-mail:
State Staff Ranger Dorothy Bensusan, 303-239-3893 or
You may mail or deliver comments to Bureau of Land Management, Colorado State Office, 2850 Youngfield Street, Lakewood, Colorado 80215.
You may also comment via the Internet to
You also may comment via the Internet by accessing the Federal eRulemaking Portal at
Written comments on the proposed amended supplementary rules should be specific, confined to issues pertinent to the proposed amendments, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal that the comment addresses. The BLM may not necessarily consider or include in the Administrative Record for the supplementary rules comments that BLM receives after the close of the comment period (see
Comments, including names, street addresses, and other contact information of respondents, will be available for public review at 2850 Youngfield Street, Lakewood, CO 80215, during regular business hours (7:45 a.m. to 3:45 p.m.), Monday through Friday, except Federal holidays. Before including your address, telephone 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 in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
The current camping stay limit was published in 1990, and while it limited occupancy of any location to 14 days, it only required departure for 7, or removal to a new location not less than 3 miles away. As a result, certain users have taken advantage of the existing language and established long term residency under the pretext of camping. Public concern about this unauthorized residential occupancy has necessitated that the BLM develop stronger regulations to address the issue. These uses often interfere with legitimate recreation use of public lands, create sanitation and other potential health concerns, cause damage to the resources by illegal campfire use, vegetation trampling, vehicle use, and trash dumping, and occasionally pose public dangers.
These regulations replace the statewide 14-Day Camping Limit established by the Colorado BLM through
Individual Field Offices may issue separate regulations relating to camping and occupancy that are more, but not less, restrictive. This notice does not affect more restrictive camping limits that may already be in place for certain areas.
These supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. The supplementary rules will not have an effect of $100 million or more on the economy. They are directed at preventing unlawful personal behavior on public lands, in order to protect public health and safety. They will not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. The supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The supplementary rules do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor do they raise novel legal or policy issues. The supplementary rules merely enable BLM law enforcement personnel to enforce regulations pertaining to unlawful occupancy and health, building, sanitation, and fire codes in a manner consistent with current Colorado state and county laws, where appropriate on public lands.
Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601-612, (RFA) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rules do not pertain specifically to commercial or governmental entities of any size, but contain rules to protect the health and safety of individuals, property, and resources on the public lands. Therefore, BLM has determined under the RFA that the proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.
This supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). Again, the supplementary rules pertain only to individuals who may wish to occupy public lands for residential purposes or maintain, construct, place, occupy or use any structure in violation of state or county health, building, sanitation or fire codes. In this respect, the regulation of such use is necessary to protect the public lands and facilities and those, including small business concessionaires and outfitters, who use them. The supplementary rules have no
These proposed supplementary rules do not impose an unfunded mandate on state, local or tribal governments or the private sector of more than $100 million per year; nor do these proposed supplementary rules have a significant or unique effect on state, local, or tribal governments or the private sector. The supplementary rules do not require anything of state, local, or tribal governments. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531,
The proposed supplementary rules do not represent a government action capable of interfering with constitutionally protected property rights. The supplementary rules do not address property rights in any form, and do not cause the impairment of anyone's property rights. Therefore, the Department of the Interior has determined that the supplementary rules would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
The supplementary rules 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. The supplementary rules apply in only one state, Colorado, and do not address jurisdictional issues involving the Colorado State government. Therefore, in accordance with Executive Order 13132, BLM has determined that the supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
In accordance with E.O. 13175, we have found that these proposed supplementary rules do not include policies that have tribal implications. Since the supplementary rules do not change BLM policy and do not involve Indian reservation lands or resources, we have determined that the government-to-government relationships should remain unaffected. The supplementary rules only prohibit the unauthorized occupancy of public lands and the unauthorized maintaining, construction, placing, occupying, or use of any structure in violation of any state and/or county health, building, sanitation, or fire code on public lands.
Under Executive Order 12988, Colorado State Office of the BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.
These proposed supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
The BLM has prepared an environmental assessment (EA) and has found that the proposed supplementary rules would not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The supplementary rules will enable BLM law enforcement personnel to cite persons for unlawful camping, and the use of public land for residential purposes. The BLM has placed the EA and the Finding of No Significant Impact (FONSI) on file in the BLM Administrative Record at the address specified in the
These proposed supplementary rules do not comprise a significant energy action. The supplementary rules will not have an adverse effect on energy supplies, production, or consumption. They only address unauthorized occupancy and violations of state or county health, building, sanitation or fire codes on public lands, and have no conceivable connection with energy policy.
The principal author of these proposed supplementary rules is State Staff Ranger Dorothy Bensusan, Bureau of Land Management.
For the reasons stated in the Preamble, and under the authority for supplementary rules found under 43 CFR 8365.1-6, 43 CFR 8364.1, 43 U.S.C. 1740, 16 U.S.C. 670h(c)(5) and 43 U.S.C. 315a, the Colorado State Director, Bureau of Land Management, proposes to issue these supplementary rules for public lands managed by the BLM in Colorado, to read as follows:
Unless otherwise authorized, the following acts are prohibited on public lands within Colorado:
1. You must not camp longer than 14 consecutive days at any one location on public land.
2. After the 14 days have been reached, you must not return to that location for 30 days, and/or you must move at least 30 air miles away from the previously occupied location.
3. You must not leave any personal property or refuse after vacating the campsite. This includes any property left for the purposes of use by another camper or occupant.
4. You must not leave personal property unattended in a day use area, campground, designated recreation area, or on any other public lands, for more than 24 hours.
5. You must not establish occupancy, take possession of, or otherwise use public lands for residential purposes except as allowed under 43 CFR 3715.2, 3715.2-1, 3715.5, 3715.6, or with prior written authorization from the BLM.
6. You must not block, restrict, place signs, or otherwise interfere with the use of a road, trail, gate or other legal access to and through public lands.
7. You must not camp in any area posted as closed to camping. Closure must be attained through a final land use planning decision,
8. If a camping area charges fees, you must register and pay camping fees within 30 minutes of occupying any campsite.
9. Whenever camping in a developed campground or designated recreation area with established campsites, you must camp in a designated campsite.
You must not violate any state or county laws or regulations relating to public health, safety, sanitation, building or fire codes.
a. On public lands in grazing districts (
b. On public lands subject to the Federal Lands Policy and Management Act of 1976, 43 U.S.C. 1701,
Bureau of Land Management, Interior.
Notice.
Recreation and Public Purposes (R&PP) Act request for lease and subsequent conveyance of approximately 55 acres of public land in the City of Las Vegas, Clark County, Nevada. The City of Las Vegas proposes to use the land for a public park.
Interested parties may submit written comments regarding the proposed lease/conveyance of the lands until March 24, 2008.
Mail written comments to the BLM Field Manager, Las Vegas Field Office, 4701 N. Torrey Pines Drive, Las Vegas, NV 89130-2301.
Kim Liebhauser, (702) 515-5088.
The following described public land in Clark County, Nevada has been examined and found suitable for lease and subsequent conveyance under the provisions of the R&PP Act, as amended (43 U.S.C. 869
In accordance with the R&PP Act, the City of Las Vegas has filed an application to develop the above described land as a public park with related facilities to meet the park space needs of this rapidly growing area. Related facilities include four soccer fields, three baseball diamonds, a children's play area with shade canopy, picnic shelters, restrooms, concession area, large grass open play area, landscaping, and parking lot. Additional detailed information pertaining to this application, plan of development, and site plan is in case file N-66348, which is located in the BLM Las Vegas Field Office at the above address.
Cities are a common applicant under the public purposes provision of the R&PP Act. The City of Las Vegas is a political subdivision of the State of Nevada and is therefore a qualified applicant under the Act. The land is not required for any Federal purpose. The lease/conveyance is consistent with the BLM Las Vegas Resource Management Plan, dated October 5, 1998, and would be in the public interest. The lease/conveyance, when issued, will be subject to the provisions of the R&PP Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe.
The lease/conveyance will be subject to:
1. Valid existing rights;
2. A right-of-way for gas pipeline granted to Kern River Transmission Company, its successors and assigns, by right-of-way N-42581, pursuant to the Act of February 25, 1920, 041 Stat. 0437, 30 U.S.C. 185 Sec. 28;
3. A right-of-way for road granted to Clark County, its successors and assigns,
4. A right-of-way for an underground distribution line granted to Nevada Power Company, its successors or assigns, and those rights granted to Central Telephone Company, its successors or assigns, by right-of-way N-54331, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
5. A right-of-way for an underground distribution line granted to Nevada Power Company, its successors and assigns, by right-of-way N-55341, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
6. A right-of-way for road granted to Clark County, its successors and assigns, by right-of-way N-57092, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
7. A right-of-way for road granted to Clark County, its successors and assigns, by right-of-way N-58559, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
8. A right-of-way for road granted to Clark County, its successors and assigns, by right-of-way N-59744, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
9. A right-of-way for road granted to Clark County, its successors and assigns, by right-of-way N-60079, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
10. A right-of-way for construction staging granted to Las Vegas Valley Water District, its successors and assigns, by right-of-way N-61176-01, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761.
11. A right-of-way for the north segment of the Interstate 215 Beltway granted to Clark County, its successors and assigns, by right-of-way N-61323, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
12. A right-of-way for an underground distribution line granted to Nevada Power Company, its successors and assigns, by right-of-way N-61629, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
13. A right-of-way for an underground distribution line granted to Nevada Power Company, its successors and assigns, by right-of-way N-61910, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
14. A right-of-way for a water pipeline granted to Las Vegas Valley Water District, its successors and assigns, by right-of-way N-62096, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
15. A right-of-way for a water line granted to Las Vegas Valley Water District, its successors and assigns, by right-of-way N-62751, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
16. A right-of-way for an underground distribution line granted to Central Telephone Company, its successors or assigns, by right-of-way N-63045, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761;
17. A right-of-way for a natural gas line granted to Southwest Gas Corporation, its successors or assigns, by right-of-way N-75767, pursuant to the Act of February 25, 1920, 041 Stat. 0437, 30 U.S.C. 185 Sec. 28;
18. A right-of-way for underground electrical conduit granted to Nevada Power Company, its successors or assigns, by right-of-way N-76736, pursuant to the Act of October 21, 1976, 090 Stat. 2776, 43 U.S.C. 1761; and
19. A right-of-way for a natural gas line granted to Southwest Gas Corporation, its successors or assigns, by right-of-way N-81742, pursuant to the Act of February 25, 1920, 041 Stat. 0437, 30 U.S.C. 185 Sec. 28.
Upon publication of this notice in the
Interested parties may submit written comments regarding the specific use proposed in the application and plan of development, whether BLM followed proper administrative procedures in reaching the decision to lease/convey under the R&PP Act, or any other factor not directly related to the suitability of the land for R&PP use. Any adverse comments will be reviewed by the BLM Nevada State Director, who may sustain, vacate, or modify this realty action. In the absence of any adverse comments, this realty action will become the final determination of the Department of the Interior.
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. Only written comments submitted by postal service or overnight mail to the Field Manager, BLM Las Vegas Field Office, will be considered properly filed. Electronic mail, facsimile, or telephone comments will not be considered properly filed.
In the absence of any adverse comments, the decision will become effective April 7, 2008. The lands will not be available for lease/conveyance until after the decision becomes effective.
(Authority: 43 CFR 2741.5)
Bureau of Land Management, Interior.
Notice of Realty Action.
A parcel of public land totaling 5.07 acres in Shoshone County, Idaho, is being considered for direct sale to Sunshine Precious Metals Inc. under the provisions of the Federal Land Policy Management Act of 1976 (FLPMA), at no less than the appraised fair market value.
In order to ensure consideration in the environmental analysis of the proposed sale, comments must be received by March 24, 2008.
Address all comments concerning this Notice to Field Manager, Bureau of Land Management (BLM), Coeur d'Alene Field Office, 3815 Schreiber Way, Coeur d'Alene, Idaho 83815.
Janna Paronto, Realty Specialist, at the above address or phone (208) 769-5037.
The following-described public land in Shoshone County, Idaho, is being considered for sale under the authority of section 203 of the Federal Land Policy and Management Act of 1976, (90 Stat. 2750, 43 U.S.C. 1713):
The area described contains 5.07 acres in Shoshone County.
The 2007 BLM Coeur d'Alene Resource Management Plan identifies this parcel of public land as suitable for
On February 6, 2008, the above-described land will be segregated from appropriation under the public land laws, including the mining laws, except the sale provisions of the FLPMA. Until completion of the sale, the BLM is no longer accepting land use applications affecting the identified public land, except applications for the amendment of previously-filed right-of-way applications or existing authorizations to increase the term of the grants in accordance with 43 CFR 2807.15 and 2886.15. The segregative effect will terminate upon issuance of a patent, publication in the
For a period until March 24, 2008, interested parties and the general public may submit in writing any comments concerning the land being considered for sale, including notification of any encumbrances or other claims relating to the identified land, to Field Manager, BLM Coeur d'Alene Field Office, at the above address. In order to ensure consideration in the environmental analysis of the proposed sale, comments must be in writing and postmarked or delivered within 45 days of the initial date of publication of this Notice. Comments transmitted via e-mail will not be accepted. Comments, including names and street addresses of respondents, will be available for public review at the BLM Coeur d'Alene Field Office during regular business hours, except holidays. Individual respondents may request confidentiality. 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. If you wish to have your name or address withheld from public disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comments. Any determination by the BLM to release or withhold the names and/or addresses of those who comment will be made on a case-by-case basis. Such requests will be honored to the extent allowed by law. The BLM will make available for public review, in their entirety, all comments submitted by businesses or organizations, including comments by individuals in their capacity as an official or representative of a business or organization.
By Notice dated March 22, 2007 and published in the
The company plans to import the listed controlled substances for the manufacture of diagnostic products for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Roche Diagnostics Operations, Inc. to import the basic class of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Roche Diagnostics Operations, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substances listed.
The National Endowment for the Humanities.
Notice of meeting.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended) notice is hereby given the National Council on the Humanities will meet in Washington, DC on February 21-22, 2008.
The purpose of the meeting is to advise the Chairman of the National Endowment for the Humanities with respect to policies, programs, and procedures for carrying out his functions, and to review applications for financial support from and gifts offered to the Endowment and to make recommendations thereon to the Chairman.
The meeting will be held in the Old Post Office Building, 1100 Pennsylvania Avenue, NW., Washington, DC. A portion of the morning and afternoon sessions on February 21-22, 2008, will not be open to the public pursuant to subsections (c)(4), (c)(6) and (c)(9)(B) of section 552b of Title 5, United States Code because the Council will consider information that may disclose: trade secrets and commercial or financial information obtained from a person and privileged or confidential; information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and information the premature disclosure of which would be likely to significantly frustrate implementation of proposed agency action. I have made this determination under the authority granted me by the Chairman's
The agenda for the sessions on February 21, 2008 will be as follows:
(Open to the Public)
9 a.m.-10:30 a.m. Education Programs—Room M-07. Federal/State Partnership—Room 510A. Preservation and Access & Digital Humanities Initiative—Room 415. Public Programs—Room 420. Research Programs—Room 315.
(Closed to the Public)
Applications and Programs
Before the Council
10:30 a.m. until Adjourned : Education Programs—Room M-07. Federal/State Partnership—Room 510A. Preservation and Access Digital Humanities Initiative—Room 415. Public Programs—Room 420. Research Programs—Room 315.
The morning session of the meeting on February 22, 2008 will convene at 9 a.m., in the first floor Council Room M-09, and will be open to the public, as set out below. The agenda for the morning session will be as follows:
A. Minutes of the Previous Meeting
B. Reports
1. Introductory Remarks.
2. Staff Report.
3. Congressional Report.
4. Budget Report.
5. Reports on Policy and General Matters.
a. Education Programs.
b. Federal/State Partnership.
c. Preservation and Access.
d. Digital Humanities Initiative.
e. Public Programs.
f. Research Programs.
The remainder of the proposed meeting will be given to the consideration of specific applications and will be closed to the public for the reasons stated above.
Further information about this meeting can be obtained from Heather C. Gottry, Acting Advisory Committee Management Officer, National Endowment for the Humanities, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, or by calling (202) 606-8322, TDD (202) 606-8282. Advance notice of any special needs or accommodations is appreciated.
February 8, 2008; 8 a.m. to 3 p.m.
National Science Foundation, 4201 Wilson Blvd., Room 1235, Arlington, VA 22230. All visitors must report to the NSF visitor desk at the 9th and N. Stuart Streets entrance to receive a visitor's badge. This roundtable discussion will be open to the public.
Tami Tamashiro, National Science Board Office, Tel: (703) 292-7853, E-mail:
(1) How can science and engineering advancements help address some of the key uncertainties in the development of sustainable energy, as well as, bring new technologies to the market?
(2) How must transformation take place in science and engineering throughout our education, research, and corporate infrastructure?
(3) Where are the next big breakthroughs likely to occur in sustainable energy?
(1) How can NSF best support establishing and sustaining a nationally coordinated S&E research and education initiative on sustainable energy?
(1) How do we as a nation build the capability, the policy, and the regulatory environment to effect change in the energy sector sufficiently and rapidly?
(2) What specific actions are needed to establish and sustain a nationally coordinated S&E research and education initiative on sustainable energy?
(3) What is the potential role of the U.S. Government, private industry, and NGOs in addressing the science and engineering (S&E) challenges related to the development of sustainable energy described in the task force charge?
This roundtable discussion will not involve National Science Board deliberations and is not subject to 5 U.S.C. 552b.
U.S. Nuclear Regulatory Commission.
Notice of meeting.
NRC will convene a meeting of the Independent External Review Panel To Identify Vulnerabilities in the U.S. Nuclear Regulatory Commission's (NRC) Materials Licensing Program on February 19 through 21, 2008. A copy of the agenda for the meeting can be obtained by e-mailing Mr. Aaron T.
Aaron T. McCraw, e-mail:
Mr. Thomas E. Hill will chair the meeting. Mr. Hill will conduct the meeting in a manner that will facilitate the orderly conduct of business. The following procedures apply to public participation in the meeting:
1. Persons who wish to provide a written statement should submit an electronic copy to Mr. McCraw at the contact information listed above. All submittals must be received by February 15, 2008, and must pertain to the topics on the agenda for the meeting.
2. Questions and comments from members of the public will be permitted during the meeting, at the discretion of the Chairman.
3. The transcript and written comments will be available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, Maryland 20852-2738, telephone (800) 397-4209, on or about June 1, 2008.
4. Persons who require special services, such as those for the hearing impaired, should notify Mr. McCraw of their planned attendance.
This meeting will be held in accordance with the Atomic Energy Act of 1954, as amended (primarily Section 161a); the Federal Advisory Committee Act (5 U.S.C. App); and the Commission's regulations in Title 10,
The Presidio Trust is providing notice of seven systems of records subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a). The publication of these systems notices is required under 5 U.S.C. 552a(e)(4).
This action will be effective without further notice on April 15, 2008, unless comments are received that would result in a contrary determination.
Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
Steven Carp (415.561.5300), The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
As required by Privacy Act of 1974, the Presidio Trust has reviewed all systems of records and identified seven new systems of records.
This notice identifies points of contact for inquiring about the systems, accessing the records, and requesting amendments to the records.
In accordance with 5 U.S.C. 552a(r), a report concerning these record systems has been sent to the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget.
Utility Billing Systems.
Presidio Trust Controller's Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
Presidio Trust residential and non-residential tenants who have contracted for utilities services (electric, gas, water, sewer, refuse and/or telecommunications).
Customer files may contain the individual's name, address, phone numbers and billable utility services. Invoice files may contain the individual's name, address and amounts due for services.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To manage the Presidio Trust's Billing/Accounts Receivable system(s) to issue invoices and collect payments. Name and addresses are needed to mail invoices and customer correspondence. Phone numbers are needed for customer service and past due collections.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio; to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or
to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper and automated (computerized) records.
By name of individual or address.
Access to records is limited to the custodian of the records or by persons responsible for servicing the records in the performance of their official duties. Records and computer workstations are stored in locked cabinets or supervised office areas. Access to computerized data is controlled by password.
Paper records are destroyed six years and three months after period covered by the account. Electronic records are retained indefinitely.
Presidio Trust Controller, Presidio Trust Controller's Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains and Presidio Trust property management companies.
Rentals of Special Event Venues.
Presidio Trust Special Events Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
Presidio Trust clients who have contracted for special events permits or rentals of event venues.
Client files may contain the individual's name, address, phone numbers and Social Security number. Event files include details of the event and deposit and refund amounts.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To manage the Presidio Trust's special events bookings. Names, addresses and phone numbers are used to coordinate the event with the client. Deposit and refund information is used to manage the client's billing. Social Security numbers are required to issue a refund from remaining deposit amounts.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or
to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper and automated (computerized) records.
By name of individual or address.
Access to records is limited to the custodian of the records or by persons responsible for servicing the records in the performance of their official duties. Records and computer workstations are stored in locked cabinets or supervised office areas. Access to computerized data is controlled by password.
Paper records are destroyed six years and three months after period covered by the account. Electronic records are retained indefinitely.
Presidio Trust Special Events Manager, Presidio Trust Special Events Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains, Special Events Coordinator.
Billing and Accounts Receivable.
Presidio Trust Controller's Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
Presidio Trust residential and non-residential tenants who have contracted for utilities services (electric, gas, water, sewer, refuse and/or telecommunications).
Presidio Trust customers for other services such as rental of special event venues, and other miscellaneous services.
Presidio Trust tenants with past due amounts deemed uncollectible by the Presidio Trust's property management companies (for rent, utilities and/or damages to the property).
Customer files may contain the individual's name, Social Security number, address and phone numbers. For past due debts, these files may also contain past due notices, including a final Treasury demand letter. Invoice files may contain the individual's name, address and amounts due for services.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To manage the Presidio Trust's Billing/Accounts Receivable systems to issue invoices and collect payments. Names and addresses are needed to mail invoices and customer correspondence. Phone numbers are needed for customer service and past due collections. Social Security numbers are required to assist in the collection of past due amounts.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or
to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper and automated (computerized) records.
By name of individual or address.
Access to records is limited to the custodian of the records or by persons responsible for servicing the records in the performance of their official duties. Records and computer workstations are stored in locked cabinets or supervised office areas. Access to computerized data is controlled by password.
Paper records are destroyed six years and three months after period covered by the account. Electronic records are retained indefinitely.
Presidio Trust Controller, Presidio Trust Controller's Office, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains, Presidio Trust property management companies, Special Events Coordinator.
Non-Residential Tenant Database.
CB Richard Ellis Management Office, P.O. Box 29546, 103 Montgomery Street, San Francisco, CA 94129.
Presidio Trust non-residential tenants who lease Presidio buildings.
Information pertaining to tenant leases, which may include tenant name, Social Security number (for individuals), address, phone numbers, type of business, rental rates, contact and security deposit information.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To assist in the property management of Presidio Trust non-residential buildings.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to officers and employees of CB Richard Ellis who have a need for the records or information in the performance of their duties for the purposes described above;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or
to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Computerized records.
By name of individual, tenant or address.
Access to records is limited to the custodian of the records and persons who require use of the records in the performance of their official duties.
Computer workstations are stored in supervised office areas. Access to computerized data is controlled by password.
Paper records are destroyed six years and three months after period covered by the account. Electronic records are retained indefinitely.
CB Richard Ellis Management Office, P.O. Box 29546, 103 Montgomery Street, San Francisco, CA 94129.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual or entity to whom the record pertains.
Residential Leasing Wait List Files.
558 Presidio Boulevard, San Francisco, CA 94129. 1504 Pershing Drive, Suite E, San Francisco, CA 94129.
Persons applying to become Presidio Trust residential tenants who would lease Presidio Trust buildings. Prospective applicants for Presidio Trust residential leases.
Information regarding applicants and prospective applicants, including name, address, phone number, desired location, desired date of move and contact history.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To locate and contact persons interested in Presidio Trust residential leases.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to officers and employees of John Stewart Co. who have a need for the records or information in the performance of their duties for the purposes described above;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper and automated (computerized) records.
By name of individual.
Access to records is limited to the custodian of the records and persons who require use of the records in the performance of their official duties.
Paper records are stored in file cabinets in supervised office areas or in locked storage areas.
Computer workstations are stored in supervised office areas. Access to computerized data is controlled by password.
Records are retained indefinitely.
John Stewart Co., 558 Presidio Boulevard, San Francisco, CA 94129.
John Stewart Co., 1504 Pershing Drive, Suite E, San Francisco, CA 94129.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains.
Rejected Residential Leasing Applicant Files.
558 Presidio Boulevard, San Francisco, CA 94129. 1504 Pershing Drive, Suite E, San Francisco, CA 94129.
Individuals who were denied Presidio Trust residential leases.
Applicant name, current and prior addresses, Social Security number, income, prior landlords, verifications for landlord and employer reference, consumer credit check, civil background report and criminal background report.
Applications for housing in the Baker Beach, South Baker Beach, North Fort Scott and West Washington neighborhoods are located at 1504 Pershing Drive, Suite E. Applications for the remainder of the neighborhoods are located at 558 Presidio Boulevard.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To document why an applicant for a Presidio Trust residential lease was rejected or why an applicant declined a Presidio Trust residential lease.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to officers and employees of John Stewart Co. who have a need for the records or information in the performance of their duties for the purposes described above;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper records.
By name of individual.
Access to records is limited to the custodian of the records and persons who require use of the records in the performance of their official duties.
Records are stored in file cabinets in supervised office areas or in locked storage areas.
Records are retained indefinitely.
John Stewart Co., 558 Presidio Boulevard, San Francisco, CA 94129.
John Stewart Co., 1504 Pershing Drive, Suite E, San Francisco, CA 94129.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains, credit reporting agencies, county records, current or former landlords.
Inactive Residential Leasing Files.
558 Presidio Boulevard, San Francisco, CA 94129.
1504 Pershing Drive, Suite E, San Francisco, CA 94129.
Former Presidio Trust residential leaseholders.
Former tenant files containing tenant name, address, lease documents, correspondence, applications for housing, consumer credit reports, criminal background reports, civil background reports, Social Security numbers, income and landlord references, employer information, accounting records, parking agreements, rules and regulations, move-in and move-out records, etc.
Title I, Omnibus Parks Public Lands Act of 1996, Public Law 104-333, 110 Stat. 4097.
To retain documentation for former residential tenants.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system may be disclosed outside the Presidio Trust as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
to administer and facilitate leasing and utilization of the Presidio;
to administer and facilitate accounts relating to the Presidio Trust;
to administer and facilitate service contracts relating to the Presidio Trust;
to officers and employees of John Stewart Co. who have a need for the records or information in the performance of their duties for the purposes described above;
to an agency, organization, or individual for the purposes of performing audit or oversight operations as authorized by law;
to the U.S. Department of Justice and to legal counsel when related to litigation or anticipated litigation;
to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, or in response to a subpoena, or in connection with criminal law proceedings;
to a Congressional office, for the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains; or to Federal, State, or local agencies where necessary to obtain information relevant to the hiring or retention of an employee, or the issuance of a security clearance, contract, license, grant or other benefit.
See also 36 CFR 1008.9.
As permitted by 5 U.S.C. 552a(b)(12), and in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)), all or a portion of the records or information contained in this system may be disclosed to consumer reporting agencies.
Paper records.
By name of individual or address.
Access to records is limited to the custodian of the records and persons who require use of the records in the performance of their official duties.
Records are stored in file cabinets in supervised office areas or in locked storage areas.
Records are retained indefinitely.
John Stewart Co., 558 Presidio Boulevard, San Francisco, CA 94129.
John Stewart Co., 1504 Pershing Drive, Suite E, San Francisco, CA 94129.
All inquiries about this system of records shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.11, .16.
Requests for access to a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.13-.14, .16-.17.
Requests to amend a record shall be addressed to Privacy Act Officer, The Presidio Trust, 34 Graham St., P.O. Box 29052, San Francisco, CA 94129-0052, as provided in 36 CFR 1008.18-.19, .22, .24.
Individual to whom the record pertains, credit reporting agencies, county records, current or former landlords, officers and employees of John Stewart Co.
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act, and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
Applicants request an order that would permit certain registered open-end management investment companies to acquire shares of other registered open-end management investment companies and unit investment trusts that are within and outside the same group of investment companies.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants: c/o Barry G. Skolnick, Secretary, MLIG Variable Insurance Trust, 1700 Merrill Lynch Drive, Pennington, NJ 08534.
Deepak T. Pai, Senior Counsel, at (202) 551-6876, or Nadya Roytblat, Assistant Director, at (202) 551-6821 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 20549-0102 (telephone (202) 551-5850).
1. The Trust, organized as a Delaware statutory trust, is registered under the Act as an open-end management investment company. The Trust is currently comprised of twenty-four separate Portfolios (as defined below), each of which pursues a distinct investment objective(s).
2. Roszel Advisors is a Delaware limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). Roszel Advisors is a wholly-owned indirect subsidiary of Merrill Lynch & Co., Inc. Pursuant to an investment management agreement and subject to the authority of the Trust's board of trustees, Roszel Advisors serves as the Trusts' investment adviser and conducts the business and affairs of the Trust. Roszel Advisors has engaged at least one subadviser for each Portfolio (each a “Subadviser”) to act as that Portfolio's investment adviser to provide day-to-day portfolio management. Each Subadviser is and any future Subadviser will be registered under the Advisers Act.
3. Applicants request relief to permit: (a) The Portfolios to acquire shares of registered open-end management investment companies that are not part of the same group of investment companies, as defined in Section 12(A)(i)(G)(ii) of the Act, as the Portfolios (the “Unaffiliated Underlying Funds”); (b) the Portfolios to acquire shares of unit investment trusts (“UITs”) that are not part of the same group of investment companies as the Portfolios (“Unaffiliated Underlying Trusts”); (c) the Unaffiliated Underlying Funds and Trusts (collectively, the “Unaffiliated Funds”) to sell their shares to the Portfolios; (d) the Portfolios to acquire shares of other registered open-end investment companies in the same group of investment companies as the Portfolios (the “Affiliated Funds,” and together with the Unaffiliated Funds, the “Underlying Funds”) and (e) the Affiliated Funds to sell their shares to the Portfolios. Unaffiliated Underlying Trusts or Unaffiliated Underlying Funds may be registered under the Act as either UITs or open-end management investment companies and that have obtained exemptions from the Commission necessary to permit their shares to be listed and traded on a national securities exchange at negotiated prices (“ETFs”). Currently, the Portfolios invest in various types of securities that are not issued by registered investment companies and other financial instruments. Applicants are seeking to provide the Portfolios with the ability to invest in Underlying Funds for broader diversification and the ability to gain exposure to types of securities in which they would otherwise be unable to invest because of inadequate trade size or lack of liquidity.
1. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) of the Act from the limitations of sections 12(d)(1)(A) and (B) to the extent necessary to permit the Portfolios to acquire shares of the Underlying Funds in excess of the limits set forth in section 12(d)(1)(A) of the Act and to permit the Underlying Funds, their principal underwriters and any broker or dealer to sell their shares to the Portfolios in excess of the limits set forth in section 12(d)(1)(B) of the Act.
3. Applicants state that the proposed arrangement will not give rise to the policy concerns underlying sections 12(d)(1)(A) and (B) which include concerns about undue influence by a fund of funds or its affiliated persons over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, Applicants believe that the requested exemptions are consistent with the public interest and the protection of investors.
4. Applicants state that the proposed arrangement will not result in undue influence by the Portfolios or their affiliated persons over the Underlying Funds. The concern about undue influence does not arise in connection with the Portfolios' investment in the Affiliated Funds, since they are part of the same group of investment companies. Applicants further propose condition 1 which provides that: (a) Roszel Advisors and any person controlling, controlled by or under common control with Roszel Advisors, any investment company and any issuer that would be an investment company but for section 3(c)(1) or section 3(c)(7) of the Act advised or sponsored by Roszel Advisors or any person controlling, controlled by or under common control with Roszel Advisors (collectively, the “Group”), and (b) any Subadviser to the Portfolios and any person controlling, controlled by or under common control with the Subadviser, and any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act (or portion of such investment company or issuer) advised by the Subadviser or any person and any person controlling, controlled by or under common control with the Subadviser (collectively, the “Subadviser Group”) will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act.
5. Applicants further state that condition 2 precludes the Portfolios or Roszel Advisors, any Subadviser, promoter or principal underwriter of the Portfolios, as well as any person controlling, controlled by or under common control with any of those entities (each, a “Portfolio Affiliate”) from taking advantage of an Unaffiliated Fund, with respect to transactions between the Portfolios or a Portfolio Affiliate and the Unaffiliated Fund or the Unaffiliated Fund's investment adviser(s), sponsor, promoter, and principal underwriter and any person controlling, controlled by or under common control with any of those entities (each, an “Unaffiliated Fund Affiliate”). No Portfolio or Portfolio Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Unaffiliated Underlying Fund or sponsor to an Unaffiliated Underlying Trust) will cause an Unaffiliated Fund to purchase a security in an offering of securities during the existence of any underwriting or selling syndicate of which a principal underwriter is an officer, director, trustee, advisory board member, investment adviser, Subadviser, or employee of the Portfolio, or a person of which any such officer, director, trustee, investment adviser, Subadviser, member of an advisory board, or employee is an affiliated person (each, an “Underwriting Affiliate,” except any person whose relationship to the Unaffiliated Fund is covered by section 10(f) of the Act is not an Underwriting Affiliate). An offering of securities during the existence of any underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is an “Affiliated Underwriting.”
6. To further assure that an Unaffiliated Underlying Fund understands the implications of an investment by a Portfolio under the requested order, prior to the Portfolios' investment in the shares of an Unaffiliated Underlying Fund in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Portfolio and the Unaffiliated Underlying Fund will execute an agreement stating, without limitation, that their boards of directors or trustees (“Boards”) and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order (“Participation Agreement”). Applicants note that an Unaffiliated Fund (other than an ETF whose shares are purchased by a Portfolio in the secondary market) will retain its right at all times to reject any investment by the Portfolio.
7. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. To assure that the investment advisory or management fees are not duplicative, Applicants state that, prior to the approval of any investment advisory or management contract under section 15 of the Act, the Board of each Portfolio, including a majority of the Disinterested Trustees will find that the management or advisory fees charged under the Portfolio's advisory contract are based on services provided that are in addition to, rather than duplicative of, services provided pursuant to any Underlying Fund's advisory contract(s). Applicants further state that Roszel Advisors will waive fees otherwise payable to them by a Portfolio in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Unaffiliated Underlying Fund pursuant to rule 12b-1 under the Act) received from an Unaffiliated Fund by Roszel Advisors, or an affiliated person of Roszel Advisors, other than any advisory fees paid to Roszel Advisors or an affiliated person of Roszel Advisors by the Unaffiliated Fund, in connection with the investment by the Portfolio in the Unaffiliated Fund.
8. Applicants state that with respect to Registered Separate Accounts that invest in the Portfolios, no sales load will be charged at the Portfolios' level or at the Underlying Fund level. Other sales charges and service fees, as defined in Rule 2830 of the Conduct Rules of the NASD (“NASD Conduct Rule 2830”), will only be charged at the Portfolio level or at the Underlying
9. Applicants state that the proposed arrangement will not create an overly complex fund structure because no Underlying Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent that such Underlying Fund: (a) Receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or (b) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to: (i) Acquire securities of one or more affiliated investment companies for short-term cash management purposes, or (ii) engage in interfund borrowing and lending transactions. Applicants also represent that the Portfolios' prospectus and sales literature will contain clear, concise, “plain English” disclosure designed to inform investors about the unique characteristics of the proposed arrangement, including, but not limited to, the expense structure and the additional expenses of investing in Underlying Funds.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated persons of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling, or holding with power to vote, 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person; and (c) any person directly or indirectly controlling, controlled by, or under common control with the other person.
2. Applicants state that the Portfolios and the Affiliated Funds might be deemed to be under common control of Roszel Advisors and therefore affiliated persons of one another. Applicants also state that the Portfolios and the Underlying Funds might be deemed affiliated persons of one another if the Portfolios acquire 5% or more of an Underlying Fund's outstanding voting securities. In light of these possible affiliations, section 17(a) could prevent an Underlying Fund from selling shares to and redeeming shares from the Portfolios.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any person or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
4. Applicants believe that the proposed transactions satisfy the requirements for relief under sections 17(b) and 6(c) of the Act, as the terms are fair and reasonable and do not involve overreaching.
Applicants agree that the order granting the requested relief shall be subject to the following conditions:
1. The members of the Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. The members of the Subadviser Group will not control (individually or in the aggregate) an Unaffiliated Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of an Unaffiliated Fund, the Group or a Subadviser Group, each in the aggregate, becomes a holder of more than 25% of the outstanding voting securities of the Unaffiliated Fund, then the Group or the Subadviser Group (except for any member of the Group or the Subadviser Group that is a Separate Account) will vote its shares of the Unaffiliated Fund in the same proportion as the vote of all other holders of the Unaffiliated Fund's shares. This Condition 1 will not apply to a Subadviser Group with respect to an Unaffiliated Fund for which the Subadviser or a person controlling, controlled by, or under common control with the Subadviser acts as the investment adviser within the meaning section 2(a)(20)(A) of the Act (in the case of an Unaffiliated Underlying Fund) or as the sponsor (in the case of an Unaffiliated Trust).
A Registered Separate Account will seek voting instructions from its contract holders and will vote its shares of an Unaffiliated Fund in accordance with the instructions received and will vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received. An Unregistered Separate Account will either: (i) Vote its shares of the Unaffiliated Fund in the same proportion as the vote of all other holders of the Unaffiliated Fund's shares; or (ii) seek voting instructions from its contract holders and vote its shares in accordance with the instructions received and vote those shares for which no instructions were received in the same proportion as the shares for which instructions were received.
2. No Portfolio or Portfolio Affiliate will cause any existing or potential
3. The Board of each Portfolio, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to assure that Roszel Advisors and any Subadviser are conducting the investment program of the Portfolio without taking into account any consideration received by the Portfolio or Portfolio Affiliate from an Unaffiliated Fund or an Unaffiliated Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Portfolio in the securities of an Unaffiliated Underlying Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, the Board of the Unaffiliated Underlying Fund, including a majority of the Disinterested Trustees, will determine that any consideration paid by the Unaffiliated Underlying Fund to the Portfolio or a Portfolio Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Unaffiliated Underlying Fund; (b) is within the range of consideration that the Unaffiliated Underlying Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between an Unaffiliated Underlying Fund and its investment adviser(s), or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Portfolio or Portfolio Affiliate (except to the extent it is acting in its capacity as an investment adviser to an Unaffiliated Underlying Fund or sponsor to an Unaffiliated Underlying Trust) will cause an Unaffiliated Fund to purchase a security in any Affiliated Underwriting.
6. The Board of an Unaffiliated Underlying Fund, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Unaffiliated Underlying Fund in an Affiliated Underwriting once an investment by a Portfolio in the securities of the Unaffiliated Underlying Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board of the Unaffiliated Underlying Fund will review these purchases periodically, but no less frequently than annually, to determine whether or not the purchases were influenced by the investment by the Portfolio in the Unaffiliated Underlying Fund. The Board of the Unaffiliated Underlying Fund will consider, among other things: (a) Whether or not the purchases were consistent with the investment objectives and policies of the Unaffiliated Underlying Fund; (b) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (c) whether or not the amount of securities purchased by the Unaffiliated Underlying Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board of an Unaffiliated Underlying Fund will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to assure that purchases of securities in Affiliated Underwritings are in the best interests of shareholders.
7. Each Unaffiliated Underlying Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase from an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in an Affiliated Underwriting once an investment by a Portfolio in the securities of an Unaffiliated Underlying Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth the: (a) Party from whom the securities were acquired, (b) identity of the underwriting syndicate's members, (c) terms of the purchase, and (d) information or materials upon which the determinations of the Board of the Unaffiliated Underlying Fund were made.
8. Prior to its investment in shares of an Unaffiliated Underlying Fund in excess of the limit in section 12(d)(1)(A)(i) of the Act, the Portfolio and the Unaffiliated Underlying Fund will execute a Participation Agreement stating, without limitation, that their Boards and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of an Unaffiliated Underlying Fund in excess of the limit in section 12(d)(1)(A)(i), the Portfolio will notify the Unaffiliated Underlying Fund of the investment. At such time, the Portfolio will also transmit to the Unaffiliated Underlying Fund a list of the names of each Portfolio Affiliate and Underwriting Affiliate. The Portfolio will notify the Unaffiliated Underlying Fund of any changes to the list as soon as reasonably practicable after a change occurs. The Unaffiliated Underlying Fund and the Portfolio will maintain and preserve a copy of the order, the Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
9. Before approving any advisory contract under section 15 of the Act, the Board of each Portfolio, including a majority of the Disinterested Trustees, shall find that the advisory fees charged under the advisory contract are based on services provided that are in addition to, rather than duplicative of, services provided under the advisory contract(s) of any Underlying Fund in which the Portfolio may invest. Such finding, and the basis upon which the finding was made, will be recorded fully in the minute books of the appropriate Portfolio.
10. Roszel Advisors will waive fees otherwise payable to it by a Portfolio in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by an Unaffiliated Underlying Fund pursuant to rule 12b-1 under the Act) received from an Unaffiliated Fund by Roszel Advisors, or an affiliated person of Roszel Advisors, other than any advisory fees paid to Roszel Advisors or its affiliated person by the Unaffiliated Fund, in connection with the investment by the Portfolio in the Unaffiliated Fund. Any Subadviser will waive fees otherwise payable to the Subadviser, directly or indirectly, by the Portfolio in an amount at least equal to any compensation received by the Subadviser, or an affiliated person of the Subadviser, from an Unaffiliated Fund, other than any advisory fees paid to the Subadviser or its affiliated person by the Unaffiliated Underlying Fund, in connection with the investment by the Portfolio in the Unaffiliated Underlying Fund made at the direction of the Subadviser. In the event that the Subadviser waives fees, the benefit of
11. With respect to Registered Separate Accounts that invest in a Portfolio, no sales load will be charged at the Portfolio level or at the Underlying Fund level. Other sales charges and service fees, as defined in NASD Conduct Rule 2830, if any, will only be charged at the Portfolio level or at the Underlying Fund level, not both. With respect to other investment in a Portfolio, any sales charges and/or service fees charged with respect to shares of the Portfolio will not exceed the limits applicable to a funds of funds set forth in NASD Conduct Rule 2830.
12. No Underlying Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent that such Underlying Fund: (a) Receives securities of another investment company as a dividend or as a result of a plan of reorganization of a company (other than a plan devised for the purpose of evading section 12(d)(1) of the Act); or (b) acquires (or is deemed to have acquired) securities of another investment company pursuant to exemptive relief from the Commission permitting such Underlying Fund to: (i) Acquire securities of one or more affiliated investment companies for short-term cash management purposes, or (ii) engage in interfund borrowing and lending transactions.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On February 27, 2007, the American Stock Exchange LLC (“Amex” 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 Amex proposes to amend Amex Rule 958-ANTE, “Options Transactions of Registered Options Traders and Supplemental Registered Options Traders and Remote Registered Options Traders,” to allow registered options traders to submit electronic quotations and orders from off the Amex's trading floor on a temporary basis for a maximum of 20 days during a calendar year.
A registered options trader must notify the Amex's Division of Regulation and Compliance immediately following the day or days during which he or she submits quotes from off the floor.
The Amex states that it will use its existing surveillance procedures to monitor registered options traders' temporary off-floor trading. In addition, the Amex represents that it will be able to monitor for compliance with the Amex's trading rules and the federal securities laws and the rules and regulations thereunder.
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that the proposal is designed to provide registered options traders with the flexibility to trade from off the Amex's floor on a limited basis when they are temporarily unable to be present on the floor. The Commission notes that the Amex has stated that it will use its existing surveillance procedures to monitor the off-floor trading permitted under the proposal, and that the Amex has represented that it will be able to monitor for compliance with the Amex's trading rules and the federal securities laws and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 21, 2007, the Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“Commission”) pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission approved NASD Rule 2821 on September 7, 2007.
On November 6, 2007, FINRA published
According to FINRA, several firms requested that the effective date of the rule be delayed to allow firms additional time to make necessary systems changes. Firms also raised various concerns regarding paragraph (c) of the rule. With respect to the timing of principal review, firms stated that seven business days beginning from the time when the customer signs the application may not allow for a thorough principal review in all cases. These firms have asked that a different timing mechanism be used. Firms also questioned whether broker-dealers that do not make any recommendations to customers should be subject to paragraph (c) of the Rule. And finally, firms asked FINRA to reconsider its statement in Regulatory Notice 07-53 that Rule 2821(c) does not permit the depositing of a customer's funds in an account at the insurance company prior to completion of principal review.
FINRA staff believes it is prudent to give further consideration to paragraph (c) of Rule 2821 and the interpretation addressed in the
The Commission received fourteen comments on the proposed rule change. All commenters supported FINRA's proposal to extend the effective date of the principal review and approval requirements contained in paragraph (c) of Rule 2821 until August 4, 2008.
One commenter stated, however, that waiting until August to determine the principal review and approval standard could cost the industry millions of dollars in unnecessary expenditures if FINRA revises the rule.
In addition to supporting the extended effective date of paragraph (c), commenters also expressed concerns and proposed alternatives with respect to three aspects of the principal review and approval requirements of paragraph (c). Some commenters suggested that FINRA eliminate the principal review requirement for non-recommended transactions.
Six commenters also believed that FINRA should allow broker-dealers to forward customer checks to the issuing insurance company and allow the issuing insurance company to deposit customer funds into a suspense account prior to the completion of principal
Eight commenters suggested that FINRA revise the timing of principal review requirement.
Two commenters requested that FINRA propose a single implementation date for the entire rule.
The Commission has reviewed carefully the proposed rule change and the comments, and 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 association. In particular, the Commission finds that the proposed rule change is consistent with section 15A(b)(6) of the Act, which requires, among other things, that the rules of a national securities association be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest.
The proposed rule change does not change any of the substantive provisions of Rule 2821. It allows broker-dealers additional time to comply with one portion of the rule and provides FINRA with additional time to further consider its members' concerns. It is consistent with the requirements of the Act for FINRA to further consider paragraph (c) of Rule 2821 and its related Regulatory Notice to determine whether any unintended or harmful consequences might ensue upon the current effective date.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposes to amend the rules governing the NASD/NYSE Trade Reporting Facility (“NASD/NYSE TRF”) to delete NASD Rule 4632E(d), relating to three-party trade reports, because the NASD/NYSE TRF currently does not support the three-party trade report functionality. In addition, FINRA proposes to modify NASD Rule 4632E(c), relating to two-party trade reports, to conform NASD Rule 4632E(c) to the two-party trade report rules of FINRA's other Trade Reporting Facilities (“TRFs”).
The text of the proposed rule change is available at
In its filing with the Commission, FINRA included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The TRFs, including the NASD/NYSE TRF, provide FINRA members with mechanisms for reporting trades in NMS stocks, as defined in Rule 600(b)(47) of Regulation NMS under the Act,
However, the NASD/NYSE TRF has not implemented the three-party trade report functionality and members currently are able to submit reports to the NASD/NYSE TRF only in the two-party trade report format.
FINRA has asked the Commission to waive the 30-day operative delay and to make the proposed rule change operative on the date of filing.
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 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.
FINRA has designated the proposed rule change as one that: (i) Does not significantly affect the protection of investors or the public interest; (ii) does not impose any significant burden on competition; and (iii) does not become operative for 30 days from the date of filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. In addition, as required under Rule 19b-4(f)(6)(iii),
Pursuant to Rule 19b-4(f)(6)(iii) under the Act, a proposal does not become operative for 30 days after the date of its filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest. FINRA has asked the Commission to waive the 30-day operative delay to expedite the deletion of rules relating to the three-party trade report functionality, which currently is not supported by the NASD/NYSE TRF, and the adoption of conforming changes to the NASD/NYSE TRF's two-party trade report provisions. FINRA believes that these changes will prevent potential member confusion and trade reporting errors. FINRA notes, in addition, that the proposal amends the NASD/NYSE TRF's trade reporting rules to accurately reflect the current functionality of the NASD/NYSE TRF, but does not affect members' reporting obligations or current capability.
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the deletion of the three-party trade report provisions is designed to ensure that the rules governing the NASD/NYSE TRF accurately reflect the operation of the NASD/NYSE TRF, which currently does not support the three-party trade report functionality.
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.
All submissions should refer to File No. SR-FINRA-2008-002. 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 Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
ISE is proposing to amend its Schedule of Fees with respect to equity transactions. The text of the proposed rule change is available at ISE,
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its Schedule of Fees to: (1) Distinguish between transaction fees related to equity orders and equity orders submitted on an order delivery basis; (2) to increase the rebate for equity orders that add liquidity for securities that trade at or above $1.00 from $0.0025 to $0.0032; (3) to increase the rebate for equity orders submitted on an order delivery basis that add liquidity for securities that trade at or above $1.00 from $0.0025 to $0.0027 (these orders are submitted by Order Delivery Equity Electronic Access Members (“Order Delivery Equity EAMs”)); and (4) to cease sharing market data revenues except with respect to orders submitted on an order delivery basis. The
The Exchange proposes to restructure its Schedule of Fees and allocation of market data rebates to provide Equity Electronic Access Members (“Equity EAMs”) that submit equity orders an efficient method of calculating the exact cost of trading on the ISE Stock Exchange. Specifically, rather than providing these Equity EAMs with a lump sum market data rebate every quarter, the Exchange proposes to increase the rebate for execution of equity orders that provide liquidity from $0.0025 to $0.0032 for securities that trade at or above $1.00. This change will allow Equity EAMs to perform a precise cost benefit analysis in determining where to route their order flow.
The Exchange proposes to increase the rebate for the execution of equity orders submitted on an order delivery basis that provide liquidity from $0.0025 to $0.0027 for securities that trade at or above $1.00, but to leave the allocation of market data rebates the same for these orders. The Exchange has determined that increasing the maker rebate, discussed above, and continuing to rebate 50% of its quote and trade revenue to Order Delivery Equity EAMs is necessary for competitive reasons, particularly in light of the fact that other markets have similar maker rebates and provisions in their market data revenue rebate program.
The Exchange believes that these fee changes will not impair its ability to carry out its regulatory responsibilities. Furthermore, the Exchange intends that this rule change will not have an overall effect on the amounts rebated to Equity EAMs, except that payments will occur on a monthly instead of quarterly basis. The monies rebated to Order Delivery Equity EAMs on a quarterly basis remain unchanged.
The Exchange believes that the proposed rule change is consistent with the objectives of section 6(b) of the Act,
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or interested parties.
The foregoing proposed rule change has become effective upon filing with the Commission pursuant to section 19(b)(3)(A)(ii) 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.
All submissions should refer to File Number SR-ISE-2007-124. 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 Trading and Markets, pursuant to delegated authority.
On October 29, 2007, the New York Stock Exchange LLC (“NYSE” or
Section 102.01C of the Exchange's Manual requires companies listing under the Exchange's “pure valuation/revenue” test to have a global market capitalization of $750 million. In the case of companies listing other than in connection with an initial public offering or a spin-off or upon emergence from bankruptcy, Section 102.01C provides that the market capitalization valuation will be determined on the basis of a six-month average.
The Exchange now proposes to reduce from six months to three months the period over which prospective companies seeking to list on the Exchange must have had an average global market capitalization that meets the required level of $750 million. In addition, the Exchange proposes to amend the rule to specify that in considering the suitability for listing of a company pursuant to this standard, the Exchange will consider whether the company's business prospects and operating results indicate that the company's market capitalization value is likely to be sustained or increase over time.
After careful review, the Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, with Section 6(b)(5) of the Act,
The Commission notes that the proposed rule change does not change the quantitative global market capitalization requirement under the Exchange's “pure valuation/revenue” test. This requirement will remain at $750 million global market capitalization. Rather, the Exchange is shortening the time period over which the average global market capitalization of a prospective listed company must meet this level. The Commission notes that the proposed rule change requires the Exchange to look not only at the average three month market capitalization of the company but to also consider whether the company's market capitalization is likely to be sustained or increase over time based on the company's business prospects and operation results. The Commission therefore believes that the proposed rule change may allow the earlier listing of companies, but at the same time, it is designed to ensure that the Exchange does not list companies on the basis of a market capitalization valuation that is unlikely to be sustained. In this regard, the Commission expects that the Exchange will scrutinize companies to ensure that it will only list companies that should be able to continue to meet the market capitalization standard.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NYSE proposes to rescind NYSE Rule 97 (Limitation on Member's Trading Because of Block Positioning). The text of the proposed rule change is available at NYSE, the Commission's Public Reference Room, and
In its filing with the Commission, NYSE 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.
Through this filing, the Exchange seeks to rescind Exchange Rule 97. Exchange Rule 97 prevents a member organization that holds a long position in a security that resulted from a block transaction with a customer from
The Exchange has from time to time reviewed the applicability of the rule and made amendments in an attempt to maintain the rule's relevance as the nature of trading has significantly evolved over the years. Notwithstanding those efforts, the Exchange believes that the practical application of the rule in today's market no longer addresses the concerns that prompted its implementation. The Exchange therefore proposes to rescind Exchange Rule 97 in its entirety.
Exchange Rule 97 focuses on the trading of member organizations while they hold positions in a security as a result of a block transaction with customer(s). The rule was originally adopted to address concerns that a member organization might engage in manipulative practices by attempting to “mark-up” the price of a stock to enable the position acquired in the course of block positioning to be liquidated at a profit, or to maintain the market at the price at which the position was acquired.
In 2002, the rule was amended to narrow the scope of the prohibitions solely to transactions executed within the last twenty minutes of the trading day, and to provide exceptions to the rule for member organizations that establish information barriers and for certain hedging transactions.
The implementation of Regulation NMS in March 2007 necessitated an additional amendment to the rule in July 2007 to create an exemption to resolve a conflict between compliance with Rule 97 and Regulation NMS.
NYSE states that this proposed rescision of the rule highlights the extent to which trading has changed and how the operation of Rule 97 hinders the ability of member organizations to legitimately conduct their business and facilitate their customers' orders. Today, compliance with Regulation NMS means that the liquidation of a block position typically occurs on many different market centers. Additionally, the Exchange believes that, in active and volatile market conditions, incremental movements of a penny or more occur almost instantaneously, lessening the ability to influence the closing price of a security.
Rule 97 was established at a time when the majority of block transactions were executed on the Exchange. However, in the present competitive trading environment, there are now many other venues available for market participants to effect block position transactions without the strictures of such a rule. The Exchange believes that, in order to encourage consistency throughout the industry with respect to the execution of block positions and to encourage market participants to continue to effect their block transactions on the Exchange, Rule 97 should be rescinded. NYSE represents that NYSE Regulation, Inc. will continue to surveil in NYSE-listed securities for possible manipulative activity, including marking the close, which could be in violation of federal securities laws or Exchange Rules, including Rule 10b-5 under the Act,
NYSE believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange seeks to extend its current portable phone pilot (the “Pilot”) operating pursuant to Exchange Rule 36 from its scheduled January 31, 2008 expiration date to April 30, 2008.
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.
The Exchange seeks to extend the Pilot operating pursuant to Exchange Rule 36 from the Pilot's scheduled January 31, 2008 expiration date to April 30, 2008. Pursuant to the Pilot, Floor brokers and Registered Competitive Market Makers (“RCMM”) are permitted to use an Exchange authorized and provided portable telephone on the Exchange Floor provided certain conditions are met.
The Commission originally approved the Pilot to be implemented for a six-month period
During the operation of the Pilot, Floor brokers and RCMMs may use Exchange authorized and issued portable telephones on the Exchange Floor. Floor brokers are permitted to engage in direct voice communication from the point of sale to an off-Floor location, such as a member firm's trading desk or the office of one of the broker's customers. Such communications permit the broker to accept orders consistent with Exchange rules governing the entry of orders on the Exchange Floor;
Both incoming and outgoing calls are allowed, provided the requirements of all other Exchange rules have been met. A Floor broker is not permitted to represent and execute any order received as a result of such voice communication unless the order is first properly recorded by the member and entered into the Exchange's Front End Systemic Capture (FESC) electronic database (Exchange Rule 123(e)).
The Pilot also allows RCMMs to use an Exchange authorized portable phone solely to call and receive calls from their booths on the Exchange Floor, to communicate with their or their member organizations' off-Floor office, and to communicate with the off-Floor office of their clearing member organization to enter off-Floor orders and to discuss matters related to the clearance and settlement of transactions, provided the off-Floor office uses a wired telephone line for these discussions. RCMMs, who trade for their own accounts on the Exchange Floor subject to the requirements of Exchange Rule 107A, are currently not allowed to use a portable phone to conduct any agency business.
Specialists are subject to separate restrictions in Exchange Rule 36 on their ability to engage in voice communications from the specialist post to an off-Floor location.
Currently, there are approximately 400 portable phone subscribers.
Of the 960 average incoming calls/day received, an average of 337 calls/day was external calls to RCMMs from the upstairs offices of their member organization and their clearing member organization and external calls to Floor brokers. An average of 623 calls/day was internal calls received from the booth. Thus, approximately 65% of all incoming calls received were from the booth and the remaining 35% of incoming calls received were external calls to RCMMs from the upstairs offices of their member organization and their clearing member organization and external calls to Floor brokers.
The Exchange believes that the Pilot is operating successfully in that there is a reasonable degree of usage of portable phones. During the period of January 31, 2007 through January 31, 2008, there have been no significant regulatory concerns identified with their usage.
The Exchange proposes to extend the operation of the current Pilot for an additional three months to April 30, 2008. The Exchange believes that the approval of the Pilot's continuation for an additional three months will enable the Exchange to continue to provide more direct, efficient access to its trading crowds and customers, increase the speed of transmittal of orders and the execution of trades, and provide an enhanced level of service to customers in an increasingly competitive environment.
The basis under the Act for this proposed rule change is the requirement under section 6(b)(5)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the foregoing proposed rule change 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, it has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange requests that the Commission waive the 30-day operative period under Rule 19b-4(f)(6)(iii) of the Act.
The Commission notes that proper surveillance is an essential component of any telephone access policy to an exchange trading floor. Surveillance procedures should help to ensure that Floor brokers and RCMMs use portable phones as authorized by Exchange Rule 36 and that orders are being handled in compliance with Exchange rules.
The Commission also requests that the Exchange report any problems, surveillance, or enforcement matters associated with the Floor brokers' and RCMMs' use of an Exchange authorized and provided portable telephone on the Exchange Floor. As stated in the Original Order, NYSE should also address whether additional surveillance would be needed because of the derivative nature of the ETFs. Furthermore, in any future additional filings on the Pilot, the Commission would expect that NYSE submit information documenting the usage of the phones, any problems that have occurred, including, among other things, any regulatory actions or concerns, and any advantages or disadvantages that have resulted.
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 Trading and Markets, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before April 7, 2008.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Rachel Newman-Karton, Program Analyst, Office of Small Business Development Centers, Small Business Administration, 409 3rd Street SW., 6th Floor, Wash., DC 20416.
Rachel Newman-Karton, Program Analyst, Office of Small Business Development Centers, 202-619-1816
Small Business Administration.
Notice of Reporting Requirements Submitted for OMB Review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before March 7, 2008. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to:
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of INDIANA (FEMA-1740-DR), dated 01/30/2008.
01/30/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 01/30/2008, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
Carroll, Cass, Elkhart, Fulton, Jasper, Marshall, Pulaski, Tippecanoe, White.
Benton, Clinton, Fountain, Howard, Kosciusko, Lagrange, Lake, Laporte, Miami, Montgomery, Newton, Noble, Porter, St. Joseph, Starke,
Wabash, Warren.
The Interest Rates are:
Homeowners With Credit Available Elsewhere: 5.875.
Homeowners Without Credit Available Elsewhere: 2.937.
Businesses With Credit Available Elsewhere: 8.000.
Other (Including Non-Profit Organizations) With Credit Available Elsewhere: 5.250.
Businesses And Non-Profit Organizations Without Credit Available Elsewhere: 4.000.
Businesses & Small Agricultural Cooperatives Without Credit Available Elsewhere: 4.000.
The number assigned to this disaster for physical damage is 11160B and for economic injury is 111610.
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 Richard Lahne, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8058). 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.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before February 26, 2008.
You may send comments identified by Docket Number FAA-2007-0105 using any of the following methods:
•
•
•
•
Pat Nininger (816) 329-4129, FAA Central Regional Office, 901 Locust St. Kansas City, MO 64106 or Frances Shaver (202) 267-9681, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received.
This notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket
You may send comments identified by Docket Number FAA-2008-0146 using any of the following methods:
•
•
•
•
•
•
We will post all comments we receive, without change, to
Tyneka Thomas (202) 267-7626 or Frances Shaver (202) 267-9681, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA has forwarded the information collection request described in this notice to the Office of Management and Budget (OMB) for approval of changes to and extension of a currently approved information collection. We published a
Please submit comments by March 7, 2008.
You may send comments within 30 days to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention DOT Desk Officer. You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burden; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. All comments should include the Docket number FHWA-2007-0008.
Gary Jensen, 202-366-2048, Office of Planning, Environment and Realty, HEP-2, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 7:30 a.m. to 4:30 p.m., Monday through Friday, except Federal holidays.
Applications are completed by Federal, State, or local governmental agencies; Tribal governments; and non-profit organizations. The application information is collected electronically via the online Grant system (
The legislation also includes information about the nomination of scenic byways to become one of America's Byways, a collection of distinct and diverse roads designated by the U.S. Secretary of Transportation. America's Byways include the National Scenic Byways and All-American Roads. Additional information on the National Scenic Byways Program, its grant program, and the nomination process is available at
The total number of burden hours for this collection has changed. The grants applications forms were decreased to include only those forms that were created specifically for www.grants.gov. Also, the nominations cycle burden hours have been added.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Transit Administration (FTA), DOT.
Final Strike Adjustment Policy for Urbanized Area Apportionments.
This notice announces the Federal Transit Administration's (FTA) National Transit Database (NTD) policy on strike adjustments. On March 12, 2007, FTA provided notice to NTD reporters that it was changing its policy on strikes, to permit transit agencies to request an adjustment to their NTD data that are used in the apportionment of Urbanized Area Formula Grants to offset the effect of strikes, retroactive to the 2005 Report Year. This policy was also announced in the
For program issues, John D. Giorgis, Office of Budget and Policy, (202) 366-5430 (telephone); (202) 366-7989 (fax); or
The National Transit Database (NTD) is the Federal Transit Administration's (FTA's) primary database for statistics on the transit industry. Congress established the NTD to “help meet the needs of * * * the public for information on which to base public transportation service planning * * *” (49 U.S.C 5335). Currently, over 650 transit agencies in urbanized areas report to the NTD through an Internet-based reporting system. Each year, performance data from these submissions are used to apportion over $4 billion of FTA funds under the Urbanized Area Formula Grants Program. These data are also used in the annual National Transit Summaries and Trends report, the biennial Conditions and Performance Report to Congress, and in meeting FTA's obligations under the Government Performance and Results Act.
For many years, it was FTA's policy to not adjust performance data submitted to the NTD to offset the effect of strikes. On March 12, 2007, FTA provided notice to NTD reporters that it was changing its policy on strikes, to permit transit agencies to request an adjustment to their NTD data that are used in the apportionment of Urbanized Area Formula Grants to offset the effect of strikes, retroactive to the 2005 Report Year. This policy was also announced in the
FTA proposes to allow urbanized area transit agencies to request that their NTD data submissions be adjusted to offset the effects of strikes for purposes of the apportionment of Urbanized Area Formula Program Grants. Requesting transit agencies must provide FTA with documentation for the duration of the strike. FTA will then use the transit agency's NTD submissions to project performance data for the time period in question. These projections would then be added to the transit agency's NTD submission in the data sets used by FTA for the calculation of the apportionments of Urbanized Area Formula Program Grants (Section 5307 and Section 5309 Grants). In all publicly-available data sets and data products, an agency's NTD data would remain unadjusted and would reflect the actual NTD submission for the agency.
FTA proposes this policy change because the Section 5307 and Section 5309 Grant Programs are fundamentally designed to support the capital needs of transit agencies in urbanized areas. As such, various performance data are used to approximate the relative capital needs of the various urbanized areas. These capital needs are unaffected by strikes, even though strikes may
Further, FTA proposes to make this policy retroactive to the FY 2005 Report Year, to allow urbanized areas that were negatively impacted by strikes in the 2005 and 2006 Report Years in the formula apportionment to avail themselves of this new policy.
FTA received one comment on this proposed policy change, inquiring as to how retroactive strike adjustments will be handled.
Nissan North America, Inc. (Nissan), has determined that certain vehicles that it manufactured during the period of April 5, 2007 to July 25, 2007, did not fully comply with paragraph S4.3(b) of 49 CFR 571.110 (Federal Motor Vehicle Safety Standards (FMVSS) No. 110
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Nissan has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
This notice of receipt of Nissan's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Affected are approximately 321 Model Year 2008 Nissan Titan E-Grade trucks manufactured from April 5 to July 25, 2007. Paragraph S4.3(b) of 49 CFR 571.110 requires in pertinent part that:
S4.3 Placard. Each vehicle * * * shall show the information specified in S4.3 (a) through (g) * * * on a placard permanently affixed to the driver's side B-pillar * * *
(b) Designated seated capacity (expressed in terms of total number of occupants and number of occupants for each front and rear seat location)
Nissan explains that E-grade Titan trucks can be equipped with two front bucket seats as an option, which means it has two seats in the front and three in the back for a total of five seating positions. The space between the two front bucket seats is occupied by a hard plastic console with cup holders that cannot be used or mistaken for a seating position. The second row has 3 seating positions. On the subject vehicles, the tire information placard incorrectly states that the total vehicle seating capacity is 6, with 3 seats in the front row, and 3 seats in the second row. All other applicable requirements of FMVSS No. 110 are met.
Nissan states that it believes the noncompliance is inconsequential to motor vehicle safety for the following reasons:
1. The front center console area of this vehicle cannot be mistaken for a seating position because the center console is low to the floor, has molded-in cup holders, has no padded/cushioned area, and has no provisions for seatbelts. It is apparent to any observer that there are only two front seating positions. Even if an occupant referenced the tire information placard to determine the vehicle's front seating capacity, it is readily apparent that the total capacity is five and not six and front row capacity is two and not three.
2. Because the subject vehicle cannot be occupied by more than five people, there is no risk of vehicle overloading.
3. The vehicle capacity weight (expressed as a total weight for passengers and cargo) on the placard is correct. The seating capacity error has no impact on the vehicle capacity weight.
Nissan also states that there have been no customer complaints, injuries, or accidents related to the incorrect seating capacity of the subject tire information placard.
Additionally, Nissan stated that it believes that because the noncompliance is inconsequential to motor vehicle safety that no corrective action is warranted.
After receipt of the petition, Nissan also informed NHTSA that it has corrected the problem that caused these errors so that they will not be repeated in future production.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:
a.
b.
c.
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
(49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8)
Financial Management Service, Fiscal Service, Treasury.
Notice and Request for comments.
The Financial Management Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection. By this notice, the Financial Management Service solicits comments concerning the form “Schedule of Excess Risks.”
Written comments should be received on or before April 7, 2008.
Direct all written comments to Financial Management Service, 3700 East West Highway, Records and Information Management Branch, Room 135, Hyattsville, MD 20782.
Requests for additional information or copies of the form(s) and instructions should be directed to Rose Miller, Manager, Surety Bond Branch, 3700 East West Highway, Room 632F, Hyattsville, MD 20782, (202) 874-6850.
Pursuant to the Paperwork Reduction Act of 1995, (44 U.S.C. 3506(c)(2)(A)), the Financial Management Service solicits comments on the collection of information described below:
Financial Management Service, Fiscal Service, Treasury.
Notice and Request for comments.
The Financial Management Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection. By this notice, the Financial Management Service solicits comments concerning the form “List of Data (A) and List of Data (B).”
Written comments should be received on or before April 7, 2008.
Direct all written comments to Financial Management Service, 3700 East West Highway, Records and Information Management Branch, Room 135, Hyattsville, MD 20782.
Requests for additional information or copies of form(s) and instructions should be directed to Rose Miller, Manager, Surety Bond Branch, 3700 East West Highway, Room 632F, Hyattsville, MD 20782, (202) 874-6850.
Pursuant to the Paperwork Reduction Act of 1995, (44 U.S.C. 3506(c)(2)(A)), the Financial Management Service solicits comments on the collection of information described below:
Federal Aviation Administration, DOT.
Final rule.
This Special Federal Aviation Regulation (SFAR) creates new pilot training, experience, and operating requirements for persons operating the Mitsubishi MU-2B series airplane (MU-2B). These requirements follow an increased accident and incident rate in the MU-2B and are based on a Federal Aviation Administration safety evaluation of the MU-2B. This SFAR mandates additional training, experience, and operating requirements to improve the level of operational safety for the MU-2B.
This final rule is effective April 7, 2008. Affected parties, however, do not have to comply with the information collection requirements until the FAA publishes in the
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of April 7, 2008.
Ron Baker, General Aviation and Commercial Division, Commercial Operations Branch, AFS-800, Federal Aviation Administration, Room 835, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8212; facsimile (202) 267-5094.
The Federal Aviation Administration's (FAA's) authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106, describes the authority of the FAA to issue, rescind, and revise the rules. This rulemaking is promulgated under the authority described in Subtitle VII, Aviation Programs, Part A, Air Commerce and Safety, Subpart III, Safety, section 44701, General Requirements. Under section 44701 the FAA is charged with prescribing regulations setting the minimum standards for practices, methods, and procedures necessary for safety in air commerce. This regulation is within the scope of that authority because it will set the minimum level of safety to operate the Mitsubishi MU-2B.
In response to the increasing number of accidents and incidents involving the Mitsubishi Heavy Industries (MHI) MU-2B series airplane, the FAA performed a safety evaluation of the MU-2B starting in July 2005. The safety evaluation provided an in-depth review and analysis of MU-2B accidents, incidents, safety data, pilot training requirements, and maintenance. During the safety evaluation, the FAA also convened an FAA Flight Standardization Board (FSB) to evaluate proposed training, checking, and currency requirements for pilots operating the MU-2B.
The notice of proposed rulemaking (NPRM) published on September 28, 2006 (71 FR 56905) was based on the recommendations of the safety evaluation and the FSB report. A copy of both the safety evaluation and the FSB report are in the Rules Docket (FAA-2006-24981) for this rulemaking action. In the NPRM, the FAA proposed new requirements for ground and flight training that would apply to all persons who manipulate the controls or act as pilot-in-command (PIC) of the MU-2B. The proposed SFAR also would apply to those persons who provide pilot training for the Mitsubishi MU-2B. Operational requirements, such as a requirement for a functioning autopilot for single pilot instrument flight rules (IFR) and night visual flight rules (VFR) operations, a requirement to obtain and carry a copy of the latest available revision of the airplane flight manual, and a requirement to use a new pilot checklist were part of the proposal. The requirements of the proposed SFAR would be in addition to the requirements in 14 CFR parts 61, 91, and 135.
The FAA proposed that all training conducted in the Mitsubishi MU-2B be done using the standardized MHI training program and a checklist accepted by the FAA's MU-2B FSB. Copies of a training program and a checklist were placed in the Rules Docket for this rulemaking so that interested persons could comment on them. In addition, the FAA requested comment on additional paperwork requirements of the proposed rule.
The FAA proposed a 180-day compliance date for the final rule. However, when published in the
On January 3, 2007 (72 FR 55) the FAA published a supplemental NPRM (SNPRM). The FAA had been monitoring implementation of the MHI MU-2B training program and determined that some pilots with little or no experience flying the MU-2B were requesting training at the requalification level when it was the FAA's intention that these pilots receive training at the initial/transition level. The FAA needed to clarify our intent with regard to the phrase “operating experience” as used in the training program. A lack of specificity led to the public not being properly advised as to the circumstances under which the FAA expected a pilot to undergo initial/transition training, requalification training, or recurrent training. In the SNPRM, the FAA proposed experience qualifications for initial/transition training, requalification training, and recurrent training. The comment period for the SNPRM closed on February 2, 2007.
The FAA received over 90 comments on the proposed SFAR. Commenters included commercial operators, general aviation pilots, organizations representing owners and operators of the MU-2B, and the manufacturer. Most commenters applauded the FAA's requirement for additional pilot training in the MU-2B airplane, but also took issue with the total number of program hours required for pilot training or qualification as a flight instructor. Several commenters noted that the MU-2B, by the FAA's own admission, is a safe airplane and questioned why pilots of other makes and models of airplanes are not required to receive additional training. In general, commenters noted that the MU-2B airplane is safe if “flown by the book.”
Several commenters stated that the SFAR is well thought out and will address the majority of MU-2B accidents that have arisen out of the lack of pilot training or inadequate pilot training. Other commenters stated that the additional training will not address accidents that occur from bad pilot judgment, such as the two recent
The Aircraft Owners and Pilot Association (AOPA) supported the idea of an SFAR to address the special challenges of flying an MU-2B, but stated that the proposed requirements are burdensome and go beyond what is reasonable for safety. The National Air Transportation Association (NATA) commended the FAA for the course of action the agency took in developing the NPRM, but expressed concern that the narrow compliance window and burdensome aeronautical experience requirements would reduce available instructors. The National Business Aviation Association (NBAA) praised the FAA for maintaining a data-driven safety focus. After reviewing the FAA's proposal, NBAA concluded that the issuance of an SFAR is the most appropriate regulatory solution in light of a number of possible options. The Regional Air Cargo Carriers Association (RACCA) applauded the FAA's efforts to take a measured approach involving the manufacturer, the operators, and the FAA in developing means to address perceived safety issues with the aircraft. There was a general consensus among many of the commenters that the rulemaking effort benefited from the collaborative process prior to the NPRM that involved the airplane's users, manufacturer, and regulators.
The FAA received 20 comments to the SNPRM. Numerous comments on the SNPRM addressed issues on language in the NPRM. All comments are summarized in this preamble by issue.
The FAA proposed that this rule apply to a PIC, second in command (SIC), or any other person who manipulates the controls of the MU-2B airplane. The FAA received many comments asking who would be allowed to manipulate the controls of the Mitsubishi MU-2B airplane. The commenters argued that there are legitimate reasons why a person who is not the PIC and who does not meet the training requirement of the proposed SFAR should be allowed to manipulate the controls. Some of these reasons included flights for the purposes of providing pilot training, maintenance flights, pre-employment pilot proficiency evaluations, and demonstration flights related to aircraft sales. One commenter was concerned that the rule would prohibit a “pinch hitter” from manipulating the controls. Pinch hitter courses are often given to provide non-certificated persons with basic piloting skills in order to assist in an emergency, such as the medical incapacitation of the PIC.
The FAA agrees that the proposed restrictions would make it difficult to receive flight training in the MU-2B. The FAA did not intend to prohibit the use of the MU-2B during flight training if the PIC had successfully completed the flight training requirements of the proposed rule.
Some commenters provided valid reasons for a less restrictive regulation. The FAA recognizes that certain maintenance test flights are best performed with two pilots or a pilot and a mechanic. For example, the level of safety when performing an in-flight Negative Torque Sensor Check is greatly enhanced when done by a two-pilot crew or a pilot and mechanic. The FAA has revised the rule language to allow manipulation of the controls by certain persons who have not received the SFAR's required training. The revised rule requires that the PIC must have completed the required MU-2B training and occupy a pilot station, and the flight may not be conducted with passengers or cargo onboard. A nonqualified pilot may manipulate the controls in the three circumstances described in section 2, paragraph (b) of the SFAR.
The FAA considers a pinch hitter course to be a form of flight instruction. The FAA also considers pre-employment pilot proficiency evaluations to be a function of flight training if such evaluations are conducted by qualified instructors meeting the training and experience requirements of this SFAR. The FAA notes that the responsibility and authority of a PIC allows the PIC to deviate from the rules to the extent required in an in-flight emergency requiring immediate action.
The FAA proposed that all persons who operate the MU-2B airplane or train in the airplane would meet the requirements of the rule within 180 days of the effective date of the final rule. We felt that an expedited compliance period was necessary because of the potential safety risk identified by the safety evaluation. Based on comments and other actions that have mitigated these risks, such as voluntary compliance with the training program, the FAA has extended the compliance period to 1 year.
Many commenters expressed concern that 180 days is too short a time period for compliance. Two commercial training providers (SIMCOM and Howell Enterprises) and the airplane manufacturer (MHI) suggested 365 days as an alternative. One commenter noted the scarcity of flight instructors for the large number of pilots who would need training, stating that there are only three qualified instructors in the United States and only one simulator. Another commenter noted that some pilots are delaying recurrent training to see what the final rule will mandate; thus there will be a rush to training. Most persons commenting on this issue suggested a 365-day compliance period. Commenters also noted that if all pilots are trained in the proposed 180 days, the instructors would have nothing to do the other half of the year. They also posited that a one-time compliance window would make everyone's recurrent training in following years fall within the same 180 days.
Many commenters noted that commercial operators and most general aviation pilots are already receiving some sort of annual training. The commenters believe a longer (1 year) implementation period will allow these pilots to retain their current training cycle. The NATA believes a 1-year compliance time is more economically efficient, as it will allow MU-2B pilots flying under part 135 to complete the training defined in the SFAR in conjunction with currently required part 135 checks. They also argued that longer compliance time will have a minimal impact on safety.
The FAA agrees that a 180-day implementation period is too short. The SFAR will allow pilots to match existing annual training cycles whenever possible to reduce compliance costs. The final rule will take effect 60 days after publication in the
Many commenters agreed with the need for specialized training but raised concerns with the type and length of training. Some commenters felt that the SFAR did not go far enough, especially for initial training and part 135 operations.
The FAA proposed to adopt the hours of training determined by the FSB and incorporated in the MU-2B Training Program. We have decided to reformat the proposed training program and include it as Appendices A through D
One commercial training provider commented that the training program reduces ground training hours below what is currently provided and should be increased. Another commenter asserted that 8 hours of recurrent training is excessive for already proficient pilots. Several persons commented that 6, rather than 8, hours of requalification training is more reasonable. One commenter stated that a PIC should have at least 10 hours of in-flight training in the MU-2B before taking a check ride. Two commenters stated that the required training hours are arbitrary.
The FAA established the minimum required ground and flight training program hours after carefully reviewing all FAA-approved training programs and the proposed MHI training program. A team of pilots representing a cross section of the airplane's user demographics received the training. Proficiency levels and completion times were closely tracked. Additionally, the FAA has monitored the completion times for training conducted using the MHI training program since its approval. This monitoring has validated the number of training hours proposed. Accordingly, the FAA has determined that the program hour requirements represent the minimum number of hours required to reach an acceptable level of safety and proficiency. The FAA notes that training providers can add additional hours to the program if they feel it is needed.
A commenter stated that the 4 hours of recurrent training, followed by a check ride, is too exhausting. This person suggested that the training be broken into two, 2-hour training sessions, each 6 months apart. The FAA clarifies that the recurrent training requirement must be completed annually. The SFAR does not prohibit the division of the training into segments. Thus, the requirement may be met in two or more training sessions in order to align with existing training cycles.
The FAA proposed to adopt the hours of training determined by the FSB and incorporated in the MU-2B training program, which vary depending on whether the pilot is receiving initial/transition, requalification, recurrent, or differences training.
Several commenters suggested training to proficiency rather than imposing a set number of hours of training. The commenters also noted that the number of hours proposed is too much training for some and too little for others.
The FAA points out that the MU-2B training program requires that the student complete a minimum number of program hours and that the student is trained to an acceptable level of proficiency as defined in the training program. Additionally, although the training program addresses pilot proficiency and skill, the training program also provides a body of knowledge addressing best practices, procedures, and operational techniques, as learned throughout the safety evaluation and the FSB process. Therefore, the FAA has determined that the program hours represent the minimum amount of training time needed. The FAA will continue to monitor the time required for completion of the training and may adjust the required training program hours if necessary.
The FAA stated in the proposed rule that the hours of training in the MU-2B training program are in addition to other training required by parts 61 and 135. Based on comment, we realize that some training maneuvers may be redundant. In this case, the maneuver is only performed once, but credit is given in both training programs.
A commenter stated that the FAA should recognize part 135 training that is already required (i.e., § 135.293 aircraft competency check, § 135.297 instrument proficiency check, § 135.299 line check). Part 135 operators already receive a total of 3 hours of in-flight testing each year, plus the training that will be required by the SFAR. The commenter does not think the SFAR considered the part 135 training.
In drafting the NPRM, the FAA did consider training already conducted under part 61 and part 135. Maneuvers covered under the Final Phase Check required by the training program may not satisfy all the requirements of a § 135.293, § 135.297, or § 135.299 check. Many maneuvers listed on the FAA Form 8410-3,
The FAA did not allow credit for prior training in the proposed rule because it determined that much of the training lacked standardization and had differing procedures.
Some commenters felt that pilots with a high level of experience, previous factory training, or `third party annual training' for insurance purposes, should be exempt (grandfathered) or have a reduced number of training hours. The FAA also received comments that the proposed training program as presently defined is the only approved training program. This single program means the entire MU-2B community is required to use the proposed training program. Another commenter suggested that existing approved training programs are adequate. Several commenters requested exemption from the SFAR training requirements because of participation in other approved training programs.
During the MU-2B safety evaluation, the FAA reviewed 23 approved training programs. There was little standardization among these training programs. Many taught techniques and procedures that were contrary to those published in the airplane flight manual (AFM). Therefore it was the conclusion of the safety evaluation and the FSB, that in order for training to be effective, there must be one standardized training program. The FAA will not allow persons to be grandfathered from the SFAR based on previous training. However, as explained later in this document, training conducted between July 27, 2006, and the effective date of this rule, using Mitsubishi Heavy Industries MU-2B Training Program, Part number YET 05301, Revision Original, dated July 27, 2006, or Revision 1, dated September 19, 2006, is considered to be compliant with this SFAR.
The FAA's safety evaluation and the FSB both recommended that
The AOPA believes that pilots should not be required to pass a formal checkride at the end of their training. Instructors should be allowed to evaluate or “check” a pilot's performance during the course of training.
The final phase check of the training program is different from a formal checkride. During a formal checkride, where the pilot has made application for a certificate or rating, the inability to satisfactorily demonstrate proficiency will result in a failed checkride. During a final phase check required by the MU-2B training program, if the pilot cannot satisfactorily demonstrate proficiency he or she has not failed a checkride. Those pilots that do not perform to an acceptable level of proficiency may need additional training in order to complete the training program. The requirement of a final phase check ensures that all pilots not only receive the training, but also have acquired the skills and proficiency necessary to safely operate the airplane. The final phase check is also different from a formal checkride because the training program allows for simultaneous training and checking during requalification or recurrent training. Students can be given credit for successfully completing maneuvers while receiving the training. However, simultaneous training and checking is not allowed by the training program during initial/transition training.
The proposed rule did not specifically address the part 61 flight review in conjunction with the proposed training program. The final rule accommodates part 61 flight training, but only if the training is done in the MU-2B airplane.
The AOPA commented that the recurrent training should satisfy the requirements for a flight review as described in 14 CFR 61.56. The FAA notes that § 61.56(a) requires a flight review that includes at least 1 hour of flight time. The MU-2B training program requires a minimum of 6 hours of flight training in the MU-2B airplane for initial/transition training. Those pilots that opt to conduct requalification or recurrent training in the MU-2B airplane instead of a flight training device are required to receive a minimum of 4 or 8 hours respectively of flight training in the MU-2B airplane. Those pilots that attend initial/transition training, or conduct requalification or recurrent training in the airplane, easily satisfy the minimum amount of flight training required by § 61.56(a). Additionally, the ground training requirements for initial, requalification, and recurrent training covers the subjects required in § 61.56 (a)(1) and (a)(2). Therefore, the FAA agrees that successful completion of the flight and ground training requirements for initial/transition, requalification, or recurrent training meets the requirements of § 61.56 provided that at least 1 hour of the flight training was conducted in the Mitsubishi MU-2B airplane. Therefore, the FAA will recognize those persons that document successful completion of the applicable portions of the training program in the Mitsubishi MU-2B airplane as having met the applicable requirements of § 61.56. In this circumstance, no separate endorsement for the flight review will be required.
The AOPA and two other commenters asked that we allow training conducted in the month before or after (a grace month) it is due to be considered as accomplished in the month it was due (the base month). The FAA agrees that completing training in the month before or after the month in which compliance is required can be considered as completed in the month it is due. However, this allowance does not re-establish a pilot's base month. This practice is allowed in other training requirements, such as in part 135 training. The rule language has been adjusted to reflect this allowance. The FAA notes that the grace month only applies to the training required by this SFAR.
The FAA proposed incorporating by reference the training profiles in the proposed MU-2B training program. These were developed by the manufacturer while working with the FSB. Commenters expressed concern with some of the profiles.
One commenter felt that the engine inoperative non-precision and missed approach procedure, as published in the proposed training profiles, is dangerous. The commenter stated that requiring the pilot to extend the landing gear only when landing is assured invites training accidents, and if performed during actual instrument conditions, is contrary to the accepted instrument procedures of having the aircraft configured and stabilized inside of the final approach fix (FAF). The FAA recognizes that the profile as published, for a single-engine non-precision approach, deviates from common practices. However, during the FSB's evaluation, FAA test pilots flew a variety of makes and models of the MU-2B. They flew the MU-2B at various weights positioned throughout the airplane's center-of-gravity (CG) envelope. This included the maximum allowable take-off weight at the rearward limits of CG envelope. The drag penalty induced by configuring the airplane for landing at the FAF made it difficult to maintain a number of non-precision approach profiles. Airspeed often deteriorated below a safe speed while trying to maintain the profile in the landing configuration. Maintaining adequate airspeed became especially difficult when a circle-to-land maneuver was required. As a result of these findings, the FAA modified the single-engine non-precision approach procedures to delay deployment of the landing gear until landing is assured. This procedure has been included in the MU-2B training program in the applicable MU-2B model checklists.
The FAA notes that several elements of the training program have been revised since the training program was placed in the docket. The MU-2B Training Program now provides the profile for Take-Off Engine Failure Flaps 5° or Flaps 20° and the profile for the One Engine Inoperative Non-precision and Missed Approach. Corresponding changes were also made to the training program checklist to reflect the changes to the maneuver profiles. The FAA has determined that these changes are within the scope of the notice. There are no other substantive changes to the MU-2B Training Program except as modified by the proposal in the SNPRM.
A commenter suggested a one-time training requirement in a simulator for those failures that cannot be safely simulated in the airplane. This training would include engine failure at rotation and the in-flight Negative Torque Sensor Check. The FAA considered this option but recognizes that there are no FAA-approved MU-2B simulators in operation and only two FAA-approved, Level 5, flight training devices (FTD). Both of these devices are located at a single facility in Florida. The FAA determined that it would pose an economic hardship to make the entire MU-2B community travel to Florida to train at this facility. Additionally, although the FAA embraces the use of simulators and FTD, not all training providers have them available, nor are
A commenter also posited that the annual recurrent training should include three takeoffs and landings in the actual MU-2B airplane under the supervision of a qualified check airman or flight instructor. The FAA notes that safety can be enhanced by use of FTD during recurrent training. Therefore, the SFAR allows recurrent training to be conducted in an FTD or the MU-2B airplane.
Another commenter stated that part 135 companies should not be allowed to train in-house but should require their pilots to attend professional training companies to satisfy the SFAR requirements. The commenter also stated that there is too much latitude when part 135 companies conduct the training. The FAA considered this option but we are not changing existing part 135 regulations and guidance that allow commercial operators to conduct in-house training. Since there are no FAA-approved part 142 training centers for the MU-2B airplane, requiring commercially provided training for part 135 operators is not possible. Commercial operators can contract with training facilities to provide some types of instruction if the curriculum is approved by their Principal Operations Inspector, but this is not a requirement.
A commenter asked if the FAA will ensure that all MU-2B owners and pilots are trained to at least the proposed levels. The commenter also asked where the FAA plans to get the personnel to do surveillance on the SFAR training. The FAA is confident that pilots will be trained to at least the proposed levels. The FAA determined that successful completion of the training program requires a demonstration of proficiency to carefully defined performance standards. The FAA's Commercial Pilot Practical Test Standards are used as a guide to determine the pilot's level of proficiency under the MU-2B training program. Successful completion will be documented by a flight instructor meeting the experience requirements of the SFAR. A substantial amount of training has already been conducted using the FAA-approved MHI training program. Many pilots have voluntarily attended this training in anticipation of the issuance of the SFAR. The FAA has monitored this training and is satisfied with the quality and effectiveness of the program and its instructors. At the time of closure of the public comment period for the NPRM, approximately 6 percent of the MU-2B pilot community had received the new training. The FAA also held a workshop to ensure a smooth implementation of the FSB report for commercial training providers and part 135 operators.
The FAA will continue to monitor the training and SFAR implementation and conduct surveillance as part of its annual work program for field inspectors. Additionally, FAA guidance material was updated to assist inspectors and operators.
A commenter asked how the increase in training will prepare pilots for a loss-of-control of the airplane during an emergency. The FAA has determined that the mandatory training will provide the pilot with the knowledge and skill to fly the airplane safely within its designed operational limits under normal, abnormal, and emergency conditions, including operations with one engine inoperative. Many of the MU-2B accidents involved loss of directional control or stalling the airplane due to poor airspeed management or excessive bank angles when maneuvering. The training program emphasizes proper airspeed management, low-speed maneuvering, and the risks associated with excessive bank angles. The training also specifically addresses the loss-of-control accidents that have occurred in the MU-2B. Additionally, pilots must annually demonstrate proficiency in the flight maneuvers to commercial pilot practical test standards. Therefore, the training program focuses on prevention of unsafe conditions while also providing instruction for recovery from them.
The FAA proposed that a pilot must have logged 100 hours of PIC experience in multi-engine airplanes in order to operate the MU-2B airplane. That requirement is retained in the final rule.
One commenter questioned why the FAA would require a pilot to receive 100 hours experience in a multi-engine airplane prior to being able to serve as PIC of the MU-2B. This commenter believes that such an experience requirement would be confusing during the MU-2B training. The FAA finds that a pilot needs to have a basic level of experience and understanding of multi-engine airplanes prior to advancing to more complex airplanes. This threshold is consistent with experience requirements of SFAR 73, which describes additional operating experience requirements for the Robinson R-22/44.
In the SNPRM the FAA proposed that a person have a minimum level of previous operating experience of 50 hours within the previous 24 months to be exempt from initial/transition training. Based on comments, the FAA has modified this experience requirement in the final rule to also exempt pilots from initial training pilots who have a total of 500 hours previous operating experience. Most of the commenters requested that the FAA consider prior operating experience in the MU-2B. Some commenters noted that the proposed definitions in the SNPRM treat a pilot with significant, but not recent experience (i.e., last 24 months), the same as one with no experience. The AOPA and seven other commenters recommended that the FAA exempt experienced pilots from the initial training requirement if that pilot has at least 500 hours of documented MU-2B PIC experience. Other commenters also requested an exemption from initial training based on experience, although they suggested different determining thresholds. Two commenters suggested a threshold of 250 hours, and one commenter suggested 1,000 hours. One commenter stated that forcing an otherwise qualified pilot to attend initial training on the basis of the last 24 months flying is unfair. The commenter recommended a further qualification be added that states: “or has logged a total of 500 hours of PIC in the MU-2.” The commenter added that a pilot meeting this criteria should be able to re-qualify with the training specified in the requalification course.
The FAA agrees that pilots with significant previous experience should be exempt from participating in initial training. These pilots would instead be allowed to attend requalification training. The FAA also agrees that by allowing a form of the above proposed language, the original intent of the proposed rule is retained without penalizing those that have not flown the MU-2B within the past 24 months. Therefore, pilots with at least 500 hours of documented flight time manipulating the controls while serving as PIC of an MU-2B will not be required to attend initial/transition training, but will be required to satisfactorily complete requalification training.
In the SNPRM, the FAA proposed that pilots with less than 50 hours of operating experience within the
The NATA commented that the association is in agreement with the FAA that pilots with little or no recent experience in the MU-2B should be required to train in the aircraft in order to obtain sufficient proficiency and experience. The association was not opposed to the FAA's proposed requirement for at least 50 hours of operating experience within the previous 24 months in order to bypass initial training. The NATA stated that with the existing part 135 currency and training requirements, and the level of on-demand charter activity, the 50-hour limit should not be cumbersome or add costly training to the typical part 135 operator. The NATA was sensitive to the fact that some part 91 operators do not support this requirement, and stated that they have no specific position on this requirement as it would apply to that industry segment. The NATA also stated that they appreciate the FAA's efforts to respond to MU-2B concerns with a rational, methodic, and participatory approach.
One commenter asked that we clarify that the 50 hours in the previous 24 months is not a continuing qualification limitation, but is intended to determine the pilot's level of entry into this new program. Another commenter stated the 50-hour requirement in the original NPRM was only intended for new entrants into the training program.
The FAA notes the SNPRM did propose a continuing look-back requirement of 50 hours within the preceding 24 months. Many commenters did not support this requirement, finding it unnecessary and burdensome. The FAA agrees with the comments that a continuing look-back requirement is not needed. The FAA has reviewed the FAA-approved training program and determined that the NPRM did not include such a provision. Furthermore, the FAA notes that after completing initial or requalification training, a pilot must still satisfactorily complete recurrent training annually, which includes an annual demonstration of proficiency. Therefore, the FAA has concluded that a continuing look-back requirement is not necessary.
In response to the comments and further FAA review, the FAA has revised the MU-2B training program and the rule language to include the following operating experience thresholds for determining pilot qualification for the various training options:
A person is required to complete “Initial/transition training” if that person has fewer than:
(i) 50 hours of documented flight time manipulating the controls while serving as pilot-in-command of an MU-2B in the preceding 24 months; or
(ii) 500 hours of documented flight time manipulating the controls while serving as pilot-in-command of an MU-2B.
A person is eligible to receive
(i) 50 hours of documented flight time manipulating the controls while serving as pilot-in-command of an MU-2B in the preceding 24 months; or
(ii) 500 hours of documented flight time manipulating the controls while serving as pilot-in-command of an MU-2B.
A person is required to complete
Successful completion of initial/transition training or requalification training is a one-time requirement. A person may elect to retake initial/transition training or requalification training in lieu of recurrent training and receive credit for recurrent training for that year.
These definitions have been included in the Compliance and Eligibility section of the SFAR.
In the NPRM, the FAA discussed why it determined that an SFAR is more appropriate for the safe operation of the MU-2B than a type rating alone. This decision was based on the recommendations of the safety evaluation and the FSB.
Bankair, Inc. did not agree that it is necessary to mandate training that goes beyond the requirements of a type rating for this airplane. Another commenter said the FAA has failed to adequately consider a type rating for the aircraft or to adequately justify having an entirely special and new pilot competency program.
The MU-2B safety evaluation and the FSB found that a portfolio of corrective actions are required that go well beyond the reach of a type rating or pilot training alone are needed to significantly reduce the accident rate of the MU-2B. The SFAR allows the FAA to mandate actions that are far more stringent and broader in scope than what would be achieved through a type rating alone.
The FAA has determined that there is a need for annual recurrent training and an annual demonstration of proficiency. A type rating would not require recurrent training or additional checks because the aircraft is not required to be operated by a two-pilot crew as part of its certification basis. However, the FAA notes that some part 135 operations do require a two-pilot crew. An SFAR can mandate the conditions under which the aircraft may be operated, such as, in compliance with the new manufacturer's data (including new checklists or use of an autopilot), or other operational requirements determined necessary by the FSB. None of these requirements would be addressed by the issuance of a type rating. An SFAR can also impose higher experience requirements for those instructing or administering tests in the MU-2B than is presently required by existing regulations. Therefore, this SFAR provides a higher level of safety than would be achieved by issuance of a type rating alone.
A commenter stated that it does not make sense that he should forego all other flight training except at a flight school A commenter also suggested the FAA was supporting a commercial training monopoly. The FAA does not agree. This standardized training can be provided by any instructor or commercial training organization that meets the experience requirements for instructors as described within this SFAR. This rule does not require that all SFAR compliant training be conducted at a commercial training center or flight school.
One commenter expressed concern about access and availability of the training program. Another commenter requested that the FAA reopen the comment period, claiming that Mitsubishi will not release the training program to the public and the public cannot comment on the proposal without evaluating it. This commenter requested that the FAA have Mitsubishi publish all of their information and then re-open the comment process. A commenter also noted the manufacturer requires a Memorandum of Understanding (MOU) to be signed by the recipient before being provided a
The FAA posted a copy of the MHI training program to Rules Docket FAA-2006-24981 prior to the NPRM comment period opening. This training program remains in the Rules Docket and may be downloaded by interested parties. As previously noted, the FAA has decided to place the requirements of the MU-2B Training Program in Appendices A through D to the SFAR. The SFAR will be published in the Code of Federal Regulations making the MU-2B Training Program publicly available. The FAA has determined that the public has reasonable access to the training program.
One commenter noted that a pilot cannot operate the MU-2B contrary to the training program and wondered about other procedures not in the training program such as IFR holds, GPS approaches and DME arcs. With this SFAR, the FAA does not intend to change operational procedures that are not contained in the MU-2B training program. The FAA notes that such procedures are already covered by existing FAA regulations and guidance.
Although no comments were received about the proposed rule provisions related to future training program revisions, the FAA notes that absent future rulemaking that makes a later revision of the training program exclusive and mandatory, operators must use the MU-2B Training Program contained in the SFAR The FAA has added a new section 8 to the SFAR to give credit for use of certain prior versions of the MHI training program for a specific time period. Section 8 states that “Initial/transition or requalification training conducted between July 27, 2006, and the effective date of this rule, using Mitsubishi Heavy Industries MU-2B Training Program, Part number YET 05301, Revision Original, dated July 27, 2006, or Revision 1, dated September 19, 2006, is considered to be compliant with this SFAR, if the student met the eligibility requirements for the applicable category of training and the student's instructor met the experience requirements of this SFAR.” This addition was made to allow those pilots who have already completed the MHI training program during the rulemaking process to receive credit for initial/transition training.
The FAA proposed a variety of experience requirements for flight instructors who conduct training in the MU-2B airplane, depending on whether the instruction is in the airplane, in a simulator, or in an FTD.
One commenter stated that the SFAR adequately addresses the need for flight instructors to be trained and current in the MU-2B airplane. One training provider suggested that the experience requirements for pilot examiners and check airmen be increased from 100 hours to 300 hours. Another commenter felt that the experience requirements for instructors, pilot examiners, and check airmen should be increased to 500 hours. The FAA notes that existing regulations allow instruction and checking in the MU-2B to be conducted with as little as 5 hours PIC time in make and model. The requirement that this be increased to 300 hours for instructors and 100 hours for examiners is a substantial increase over what is now required. The experience requirements in this SFAR are also consistent with thresholds established by other prior rulemaking for certain aircraft, such as SFAR 73 for the Robinson R-22/R-44 helicopter (62 FR 16298), and the recommendations of the FSB Report.
Another commenter stated that the 50 hours of operating experience within the previous 12 months for instructors, whether in the airplane or simulator, is not enough experience for someone who provides training in the MU-2B. The FAA notes that existing regulations allow flight instruction in the MU-2B to be conducted with as little as 5 hours PIC time in make and model. The increase to 50 hours within the previous 12 months significantly increases the experience requirements for MU-2B instructors. Furthermore, this 50-hour requirement is just one of many experience requirements for MU-2B instructors. Other experience requirements for an instructor such as the currency requirement of § 61.57, the flight review of § 61.56, the 2,000 hours of PIC time, and 800 hours PIC in multi-engine airplanes, combine to set a high experience level for MU-2B instructors. The specific purpose of the 50-hour requirement is to ensure that instructors have recent experience in the MU-2B airplane, training device, or simulator. The 50 hours must be obtained within the past 12 months.
A commenter also found that the 100 hours of PIC time required for a designated pilot examiner was too little time. The FAA notes this is only part of the total requirement. That examiner is also required to have the training required by this SFAR and to maintain currency in the MU-2B. The 100 hours is based on the FSB recommendations, other aircraft training requirements, a previous SFAR, and the FAA's experience in checking and evaluation.
A commenter noted that under part 135, a flight instructor does not have to hold a valid and current certificated flight instructor certificate (CFI). The commenter commented that, for part 135 operations, a flight instructor should hold a valid CFI certificate with multi-engine and instrument ratings for at least 2 years. In addition, the check airman or CFI should have 300 hours as PIC acquired while the sole manipulator of the controls as described in 14 CFR 61.51(e)(1)(i).
The FAA does not intend to change the general qualification requirements for part 135 flight instructors, but rather to establish minimum experience requirements for all instructors who provide training in an MU-2B. Additionally, requiring 300 hours as PIC as sole manipulator of the controls or requiring that instructors for part 135 operations hold a certificated flight instructor certificate would be beyond the scope of the FAA's proposal.
A commenter stated it will be difficult for an instructor to have 50 hours of PIC MU-2B time annually, that 50 hours is not useful if it is only flown in “straight and level” flight, and that proficiency is what is useful for a flight instructor. The FAA has determined that the recency of experience and the amount of flight time in the airplane are important qualifications for a flight instructor who provides instruction in the MU-2B. This level of experience was also recommended by the FSB Report.
The NATA commented that the total flight time and PIC flight time requirements for instructors are burdensome and could significantly limit the number of instructors qualified to provide training to MU-2B pilots. Additionally, the proposed rule would require designated pilot examiners to have an excessive amount of aeronautical experience in the MU-2B but would not require the same of FAA inspectors.
The FAA has determined that although the rule will increase the experience requirements for MU-2B instructors, the rule will not significantly reduce the number of instructors that are presently teaching in the MU-2B. In order to maximize the number of instructors available to provide training in the airplane, the FAA revised section 5 to allow the Flight Instructor Airplane experience requirements to be met using a
One commenter stated that safety would be diminished because local instructors would no longer be allowed to conduct an Instrument Competency Check (ICC) for the MU-2B. This SFAR does not require that instrument currency be maintained exclusively in the MU-2B. Also, the SFAR does not prohibit local instructors from giving an ICC. The only requirement is that the instructor meets the qualifications of the SFAR in order to give instruction in an MU-2B.
One operator commented that part 135 pilots, in commercial operations, do not carry logbooks or present logbooks during training. The logbook requirement is only applicable to part 91 operators. The commenter also stated a part 135 operator keeps records in compliance with 14 CFR 135.63(c) to include the completion date and result of every phase of training and checking for 5 years after the pilot's employment ends. Logbook endorsements are generally used as provided in part 61 at the student and private pilot level. The commenter requested that the references to pilot logbooks should be changed to “logbook or other permanent pilot record.”
The FAA notes that § 135.63(c) addresses the recordkeeping requirement for multiengine load manifest and does not address documentation of pilot training. Section 135.63(a)(vi) addresses recordkeeping requirements for initial and recurrent competency tests, proficiency, and route checks required by §§ 135.293, 135.297, and 135.299. Section 135.63(a)(vii) addresses recordkeeping requirements for determining compliance with flight time limitations found within part 135. However, none of the above referenced rules address the documentation requirements of part 61. Additionally, 14 CFR 61.51 requires that all pilots, regardless of which regulations of 14 CFR under which they operate, keep a logbook and within it, document and record training and experience used to meet the requirements for a certificate, rating, flight review, aeronautical experience, or recent flight experience. This SFAR does not change the applicability or requirements of the existing § 61.51 rule. The requirements of this SFAR are not limited to part 135 operations. Pilots that operate the MU-2B will need to be able to demonstrate compliance with this SFAR whether or not they are employed by a part 135 operator. This documentation is best accomplished through a logbook endorsement, which is consistent with existing regulations.
A commenter stated that the proposed SFAR requires endorsement of the pilot logbook by a “certificated flight instructor.” The commenter posited that this text should be changed to “instructor” or “flight instructor” since part 135 does not require the use of a CFI. The FAA notes that the eligibility, requirements, and privileges of a flight instructor are described in detail by existing rules under 14 CFR parts 61 and 135. The FAA also acknowledges these requirements may be different for training conducted under part 61 as compared to part 135. Part 135 operators can use a CFI but can also use an instructor authorized by the FAA in lieu of a CFI. The FAA has changed this language accordingly.
The FAA proposed that no one could operate the MU-2B airplane under IFR, IFR conditions (i.e., instrument meteorological conditions (IMC)), or night VFR unless that airplane has a functional autopilot. That requirement is retained in the final rule. However, the FAA has described the requirement in a simplified form. The final rule does not require a functional autopilot for day VFR or when operating under IFR in daytime VMC conditions when maintenance of an inoperable autopilot has been deferred using an approved minimum equipment list (MEL).
Most persons commenting on the autopilot requirement did not see the need for this requirement. Some persons commented that the autopilot is unnecessary and rarely used; one cited that no other airplane is restricted when the autopilot is nonfunctioning. Experienced pilots commented that they prefer to “hand fly” the airplane. Another commented that, if the autopilot is mandated, a pilot may become dependent on it.
Several of the MU-2B accidents involved single pilot night-time VFR and IFR operations in high-density terminal areas with high pilot workloads. The flight training profiles flown by FSB members during the safety evaluation included a human factors workload evaluation. One airplane was equipped with several cameras that allowed post-flight evaluation of the pilot's workload. The FSB pilots completed numerous questionnaires developed by human factors specialists to measure task saturation. Questionnaires and flight video reviews were completed during post-flight interviews with a human factors specialist. Using techniques developed by the National Aeronautics and Space Administration, testing showed a significant reduction in single pilot workload and stress and improved performance when an autopilot was used in actual flight conditions. The FAA recognizes that in some conditions use of the autopilot may be inappropriate or even prohibited, such as during flights into icing conditions. The FAA also recognizes some pilots routinely hand-fly the airplane. The SFAR does not mandate the use of the autopilot during any particular phase of flight. That decision remains solely with the PIC. The SFAR does require that a functioning autopilot be installed for certain types of operations (IFR, IFR conditions, and night VFR). This requirement provides the pilot with access to a significant safety enhancing tool if he or she should need it to reduce pilot work load, during normal, abnormal, and emergency conditions.
The AOPA requested that the FAA eliminate the requirement to have a functioning autopilot for night VFR and for IFR in visual meteorological conditions (VMC) and allow an instrument and multiengine rated pilot to act as the safety pilot for an MU-2B PIC flying in IMC. Flightline/AmeriCheck, Inc., also requested that operators be allowed to conduct operations with two pilots, either two PICs or one PIC and one SIC in lieu of a functioning autopilot. Instead of grounding the airplane when the autopilot is not functioning, one commenter suggested the flight be limited to two qualified pilots; one of which meets the part 135 training and checking requirements as a SIC. In addition, one person commented that safety would be enhanced by a person in the right seat who could assist the PIC with minor duties even though he or she may not be MU-2B qualified.
The MU-2B safety evaluation and the FSB recommended that all operators of the MU-2B attend standardized pilot training. Therefore, the FAA has determined that a second pilot must meet the training requirements of this SFAR in order to provide the equivalent level of safety of a functional autopilot. Operators can conduct IFR and night VFR operations without a functioning autopilot when using a properly trained second-in-command meeting the applicable requirements of this SFAR.
We also received comments that requested relief from the autopilot through the use of a minimum equipment list (MEL). The NBAA commented they have long held that two qualified and trained pilots are one of the best safety investments in an aircraft and thus support the autopilot requirement. But, the NBAA also stated that FAA should consider allowing the use of an MEL for a nonfunctioning autopilot. Flightline/AmeriCheck, Inc. requested that they be allowed to maintain their authorization to defer repair of an inoperative autopilot by using their existing FAA-approved MEL.
The FAA notes that experience has shown the normal operation of every system or installed component may not be necessary when the remaining operative equipment or other mitigating conditions can provide an acceptable level of safety. The FAA also acknowledged that operations with inoperative equipment are possible while maintaining an acceptable level of safety by requiring appropriate conditions and limitations.
Therefore, the FAA will allow, when provided by existing rules, single pilot IFR in VMC conditions under the SFAR with the autopilot inoperative under certain conditions. The deferred maintenance and repair of the autopilot must be completed in accordance with the repair category and provisions specified in the operator's FAA-approved Mitsubishi MU-2B MEL, and the operator must obtain FAA approval to use a MEL for his or her airplane. This relief does not supersede any existing crew requirements for an SIC, including but not limited to operations described in 14 CFR 135.99, 135.105, and 135.111. This relief will allow operators time to locate parts and facilities for repairs, ferry aircraft to repair stations, and complete trips. Under certain conditions, the aircraft with an approved MEL will not be immediately grounded due to an inoperative autopilot, and operators will have a reasonable period of time to make repairs. The FAA has changed the rule language to specifically allow for the use of an MEL under the SFAR.
One person stated that if IFR flight is not an option due to a non-functioning autopilot, the pilot may push the limits of VFR rules to an unsafe situation. Another person noted that on long trips, one leg of the flight may be delayed if the airplane without a functioning autopilot must wait for good weather to avoid flying in IFR conditions. The FAA does not agree with the comments that pilots will fly in marginal VFR weather (scud run), or delay their trips when their autopilots are inoperative. Deferred maintenance and repair of the autopilot using an approved MEL will provide an alternative to choosing to fly in marginal VFR weather.
Additional commenters noted that parts for installed autopilots are difficult to obtain. The FAA recognizes that parts for the autopilots are becoming increasingly scarce and support for the existing autopilots may someday end. However, to date, the FAA is unable to identify autopilots that cannot be repaired. Additionally, the FAA notes new autopilots are under development for the MU-2B.
One commenter suggested that requiring a functioning autopilot modifies the airplane type certification basis. Another commenter stated that to require an autopilot defies the certification basis for the MU-2B because the airplane was type certificated for single pilot operations.
The FAA notes that the autopilot requirement is an operational requirement and not a certification requirement. Furthermore, in most of today's modern cockpits, aircraft that are permitted to be operated with a single pilot are required to have a functional autopilot installed. Requiring an autopilot does not change or modify the airplane's original type certification basis.
Some commenters asked which aspects of the autopilot must be functional or, if one facet is not functioning, how the airplane could be flown to a repair facility. A commenter said grounding the airplane due to a non-functioning autopilot is excessive. The FAA disagrees. A functional autopilot is one in which the system and components are operative and working properly to accomplish the intended purpose. That autopilot is consistently functioning within its approved operating limits and design tolerances. Operators have many ways to verify that their autopilot is functioning properly including conducting the preflight check as described by the manufacturer. Operators can find this information in the Supplemental AFM.
Another pilot recommended additional specific instruction in autopilot inoperative strategies during recurrent training.
The MU-2B training program provides instruction for operation of the airplane with and without the autopilot operational. The training program requires the pilot to demonstrate proficiency while hand-flying the airplane.
The FAA proposed that operators of the MU-2B airplane have on board the most recent revision to the AFM. One commenter noted that an out-of-date AFM is a common problem for many MU-2B airplanes, and was confident that the SFAR solves this problem. The SFAR requires the operator to have the appropriate AFM on board the airplane and accessible during the flight.
The FAA notes there may be differences between checklist, procedures, and techniques found in the MU-2B training program required by this SFAR and procedures found in the AFM procedures sections (Normal, Abnormal, and Emergency). Until the AFM is updated, a person operating the MU-2B must operate the airplane in accordance with the required pilot training specified in section 3, paragraphs (a), (b), and (g) and the operating requirements of section 7, paragraphs (d) and (e). If the AFMs are updated, the FAA may initiate additional rulemaking. At that time the FAA may mandate that the operators obtain and use the latest version of the AFM. The chart below shows the current versions of the AFMs as of the date of publication of the SNPRM.
The FAA proposed and the final rule requires that all operators of the MU-2B have a copy of an MU-2B checklist appropriate for the MU-2B model being operated on board the airplane, accessible for each flight at the pilot station, and used by the flight crewmembers when operating the airplane. These checklists must be accepted by the FAA's MU-2B FSB. The manufacturer has developed make and model specific checklists for each MU-2B model. These checklists have been already accepted by the FAA's MU-2B FSB and are appropriate for unmodified versions of the models listed. A list of the checklists for the various models of the MU-2B series airplane are in section 3 (g), table 1, of this final rule.
A commenter was pleased to see a standardized checklist and added that it will result in improved safety. Another commenter stated that the checklist should be aircraft specific, which could be accomplished by providing a checklist template to be customized to fit the specific aircraft.
During the safety evaluation, FAA test pilots evaluated a standardized checklist developed by MHI and found it to be a significant safety improvement. A standardized cockpit checklist that emphasizes proper operational procedures is critical to the safe operation of the MU-2B. The FAA and MHI engineers and test pilots carefully considered cockpit layout, flow patterns, crew resource management, and pilot work load when determining the checklist items. This rule requires that any MU-2B checklist used be accepted by the FAA's MU-2B FSB. Operators with airplane configurations different from the airplane as originally delivered, or later modified, may submit other checklists for review by the FSB.
Another commenter who has installed an aural checklist in his MU-2B asked if this would be prohibited under the SFAR. Yet another suggested that the checklist be customized to allow for individual configurations.
In accordance with existing FAA guidance and procedures, the MU-2B FSB is responsible for reviewing, and accepting or rejecting any checklists submitted by the manufacturer or the public. For the purpose of this rule, the term “approved or accepted” means the FAA has received the proposed checklist, reviewed the checklist content, and determined it to be safe for use while operating the MU-2B airplane.
The MU-2B FSB will review all submitted checklists, including aural checklists or those not produced by the manufacturer, if an operator has an airplane configuration that is different from that originally delivered. This review will conclude with a determination of whether the submitted checklist can be accepted. An operator may submit their proposed checklist to the MU-2B FSB at the address in the footnote and request that the FSB review the checklist for acceptance.
One commenter said he had reviewed the checklist, and at 162 pages it is too long for a pilot to run through before takeoff. Another commenter said that the checklist should flow from system to system, not as things are arranged in the cockpit.
The FAA posted to Rules Docket FAA-2006-24981 a sample of the manufacturer's checklist for comment. This is one, but not the only, possible format that the FAA may accept. This 162-page document includes checklists for normal, abnormal, and emergency procedures, but also includes instructions for checklist use, an expanded section that describes in greater detail the actions required, warnings, notes, and cautions. In the back of the binder, there are also performance charts that were not previously contained in the AFM. These charts include the following: “Weight for Positive Gradient After Takeoff with Flaps at 5 or 20 degrees” and “Single Engine Rate of Climb with Flaps at 5 or 20 Degrees.” These charts are important pre-flight decision making tools and using them can enhance safe operation of the airplane. The FAA notes that the manufacturer's checklist is comparable in size to those of airplanes of similar complexity.
The FAA stated in the NPRM that we would publish specific checklists for each MU-2B model and seek public comment. A checklist for each model of the MU-2B airplane has been approved by the FSB. These are listed in section 3(g) of the rule.
Some commenters indicated the costs of the proposed rule are higher than those estimated by the FAA. These comments are discussed below by issue. For a more complete discussion of costs and benefits, see the Final Regulatory Evaluation, which has been placed in Rules Docket FAA-2006-24981.
As discussed earlier in this document, compliance with this final rule is required 1 year after publication in the
Extending the compliance date decreases the requalification training for all MU-2B pilots currently receiving training. The baseline training cost is the cost of the existing recurrent training (rather than zero). In addition, the actual final cost estimate of requalification training for those pilots currently getting training is reduced by the travel costs and value of travel time to the training facility. As a result of extending the compliance date to 1 year, the total cost estimate for this SFAR decreases $3 million to $4 million.
Although some part 135 operators send their MU-2B pilots to commercial training providers, many part 135 operators have in-house training
One commenter stated the FAA will “kill” the value of the MU-2B, and he could not afford to walk away from a $400,000 investment he could not use or sell. In related comments, other persons stated the loss of value could be more than $100,000 per airplane. In contrast, another commenter stated he “welcomed the FAA intervention” in hope that we might be able to put the safety issue behind us and restore lost value to the MU-2B fleet.
The FAA is requiring MU-2B pilots (with a minimum of either 50 hours PIC time in the MU-2B in the last 2 years or 500 total hours in the MU-2B) to receive requalification training. This will entail a total additional cost including lodging, meals, incidental expenses, and value of time of approximately $5,000 for pilots currently getting training, or $13,000 for pilots not currently getting training. Pilots will also be required to receive annual recurrent training in the future, at a total additional cost of about $2,000 per year for pilots currently getting training or $10,000 per year for pilots not currently getting training. Such a safety expense is very small compared with a $400,000 airplane.
The MU-2B price was falling before the proposed rule was issued. Several factors, including the poor MU-2B safety record, higher maintenance costs, less availability of parts, and newer products with better capabilities, may help explain the falling price of MU-2Bs.
A commenter complained, “Our fleet value has dropped significantly. Our MU-2Bs are a standalone division of the company. If the MU-2B division can not turn a profit, the business division will be shut down. Pilots and mechanics will be let go.”
The decision to shut down a certain division is a business decision that is not based on the value of the MU-2B. The value of existing capital is not relevant in the decision to continue to provide current services. The value of capital is relevant in the determination of the shutdown value of a business. The FAA does not believe this rule will force companies out of business. As shown in Regulatory Flexibility Analysis, found in the Final Regulatory Evaluation, the pilot training cost is estimated to be greater than 2 percent of annual revenues for one small entity operator, and greater than 1 percent of annual revenues for five small entity operators. (Refer to Table RF-5 in the Final Regulatory Evaluation in Rules Docket FAA-2006-24981.)
A commenter stated that the cost of recurrent training should be reviewed. He found the price of recurrent training not $1,937 per pilot as estimated in the NPRM, but $4,100 at SimCom.
In the NPRM, the FAA estimated that the average additional cost per pilot for recurrent training would be $1,937. This is in addition to the current cost the pilot is paying for recurrent training. ($4,100 + $1,937 = $6,037) The existing 3-day recurrent training course at SimCom costs $4,100 (refer to Table 3 in the Regulatory Evaluation of the NPRM). The FAA estimated that the future recurrent training cost at SimCom would be $4,600 and that the training would spill over into a 4th day (refer to Table 4 in the NPRM's Initial Regulatory Evaluation). So the total additional cost for the recurrent training course alone is $500 ($4,600−$4,100 = $500). The average per diem costs (i.e., lodging, meals, and incidental expenses) in Orlando, FL is $137 per day based on the 2006 federal government per diem rates (refer to Tables 5 and 6). The total additional cost for the recurrent training course plus the additional day of lodging, meals, and incidental expenses would be $637 ($500 + $137 = $637). The additional costs due to travel (round trip travel costs and the value of travel time) are zero because the student would incur the same travel costs to attend the training. Since student pilots would be spending an additional day in recurrent training, the estimated value of time for the additional day is $288.51 (8 hours × $36.06 average hourly value of time = $288.51). The $36.06 average hourly value of time is an average of the hourly value of travel time savings for general aviation purposes
The FAA conducted a similar analysis for existing students at Howell Enterprises and at Professional Flight Training, and then conducted a weighted average of the additional costs per pilot at these 3 training facilities and arrived at an average additional cost of $1,937 per pilot. The total per pilot costs of training at Howell Enterprises and at Professional Flight Training are higher than at SimCom because these training facilities conduct the training in the customer's airplane. Hence, the FAA included the additional MU-2B variable operating cost of $900 per hour, which is based on a cost study of the Mitsubishi Marquise conducted by Howell Enterprises. In contrast, SimCom provides recurrent training in simulators, and students at SimCom would not incur any additional MU-2B operating costs.
Several commenters stated that the estimates in the SFAR are unrealistic. They said the real costs for requalification training will be in excess of $20,000 and the annual recurrent training cost would be in excess of $8,000.
The estimates in the initial regulatory evaluation were the additional costs that a pilot would incur due to this rule. If a pilot has been getting recurrent training, the FAA estimated that his additional cost for recurrent training due to this rule would be $1,937. If a pilot has not been getting recurrent training, and will be forced to do so now, the FAA estimates that the cost of recurrent training for this pilot would be $9,889. Hence, the existing cost of recurrent training is approximately $8,000 ($9,889−$1,937 = $7,952). The FAA estimated in the NPRM that the average total costs for requalification training would be $12,604. (Refer to Table 8 in the NPRM's Initial Regulatory Evaluation.) Requalification training is more expensive than recurrent training, but it is not 2.5 times the cost of recurrent training. The commenters have not provided any supporting justification to show that the cost of requalification training is really $20,000 plus.
After accounting for the increased compliance time and other revisions to the rule, the FAA estimates that the additional cost of requalification training for pilots currently getting training would be around $5,000 per pilot. (Refer to Table 8 in the Final Regulatory Evaluation of the Final Rule.)
A commenter stated MU-2B instructors cost $100 per hour, not $50 per hour. Also this commenter claimed there were costs associated with fuel, related airplane costs, and housing related to the training.
The FAA agrees that MU-2B instructor rates are approximately $100 per hour. However, the additional costs for pilots to attend the training program are not based on an instructor hourly rate. Instead, they are based on the costs of the training programs. (Refer to Table 3 in the Regulatory Evaluation.) As explained above, the FAA estimated total per pilot costs including training costs, MU-2B operating costs (if training is done in the airplane), lodging, food and incidental expenses, transportation to the training venue, the value of training time, and the value of travel time. The FAA estimated the MU-2B variable operating costs to be $900 per hour. This figure includes the cost of fuel, maintenance, avionics, engine reserve for overhaul and hot section, and propeller reserve. This figure does not include fixed costs and other costs such as hangar rent, crew costs, interest, or insurance costs.
The $50 per hour instructor rate used on page 24 in the Initial Regulatory Evaluation of the NPRM is the average instructor rate for an inexpensive multi-engine airplane, such as a Piper Seneca. This rate was used to estimate the costs of the proposed rule requiring pilots to log at least 100 hours of pilot-in-command (PIC) time in multi-engine airplanes. Because the operating cost of the MU-2B is $900 per hour and the rental rate for a Piper Seneca is about $200 per hour, the FAA estimated that any pilot who needed to meet the requirement of 100 hours of PIC time in multi-engine airplanes could do so in a lower cost Piper Seneca, and also pay a lower Piper Seneca instructor rate of $50 per hour.
The FAA notes that the $50 per hour instructor rate was used incorrectly in the Paperwork Reduction Act Assessment, and has made the appropriate changes to reflect the MU-2B instructor rate of $100 per hour in the PRA Assessment.
Some commenters found the autopilot costs to be underestimated. They stated that maintaining an autopilot would cost $18,000 per 1,500 flight hours. Other commenters stated the cost of an autopilot would be between $50,000 and $120,000 per airplane. MU-2 Aircraft Owners and Pilots Association and other commenters stated the average cost of an autopilot would be $75,000. The FAA received a single comment from one operator who stated he does not have an autopilot installed.
In the Initial Regulatory Evaluation, the FAA estimated the proposed rule would impose no additional costs with regard to the purchase or maintenance of autopilots. Based on information from industry, all MU-2Bs currently had functioning autopilots, and the FAA estimated these MU-2B owners would continue to maintain their autopilots in the future. The FAA was unaware that one part 135 operator did not have an autopilot, and would need to install and maintain an autopilot in order to fly single pilot IFR. The FAA has made the appropriate changes to reflect this new information in the Final Regulatory Evaluation and in the Regulatory Flexibility Assessment using an average autopilot cost of $75,000 and maintenance costs of $18,000 per 1,500 flight hours. The FAA also states that this operator still has the option of flying with two MU-2B pilots or not flying single pilot IFR or night VFR.
One commenter (a part 135 operator) stated that the FAA did not include an economic impact analysis of the cost (and weight penalty) of a second crewmember.
Under the existing part 135 regulations, a second crewmember is required for passenger-carrying operations. In contrast, only one crewmember is required to carry cargo. This new rule would require that an airplane flown under part 135 regulations have an autopilot, which is less expensive than the cost of a second crewmember. A part 135 operator may choose to have a second crewmember for a cargo operation, but the FAA is not requiring it.
Other commenters stated autopilots and parts will not be supported by the manufacturer for much longer, certain parts are in short supply, and a replacement autopilot is very expensive.
The FAA believes if the supply of replacement parts for autopilots were to become extremely scarce, a new company would produce replacement parts to meet the increased demand.
Some commenters stated that without being able to use existing MEL relief when autopilots must be deferred, the associated additional costs could easily make continued operation of these aircraft economically unfeasible.
The FAA is clarifying that MU-2B owner/operators will still have the ability to MEL the autopilot.
One commenter stated the 7% discounting method used in the SFAR economic impact analysis does not work in the real world where companies adjust their cost for inflation.
The Office of Management and Budget (OMB) permits benefit-cost analyses to be conducted in either nominal/current dollars or in constant dollars of a particular year.
The present value methodology accounts for the characteristic that benefits and costs occur over a number of years. It explicitly recognizes that otherwise equal benefits or costs which occur at different points in time will not be equal when viewed from a common point in time. Generally, the present value of a benefit will be worth more the sooner it is received, and the present value of a cost will be less the longer it is deferred.
One commenter stated that the 135 pilot qualified in a single aircraft type receives a minimum of 3 hours of in-flight testing a year, and the number of hours of training as needed. Part 135 operations require one § 135.293 aircraft competency check within the preceding 12 months, two § 135.297 instrument proficiency checks in a 12-month period, and one § 135.299 line check within the preceding 12 months. Credit for the successful completion of the § 135.293 check is not allowed in the proposed rule (although § 135.351(c) allows it to satisfy the recurrent flight training requirement). This creates an unnecessary economic burden for businesses that make their living flying the MU-2B.
The FAA agrees with the commenter and will allow checks for §§ 135.293, 135.297, and 135.299 to count also for the corresponding requirements under this SFAR. Up to 3 hours can be double-counted as training under this SFAR. However, the checker must sign those elements of the MU-2B Final Phase
Several commenters wanted the FAA to allow for simultaneous training and checking, and to allow all SFAR training to satisfy requirements for the biennial flight review.
The FAA will allow for simultaneous training and checking in requalification and recurrent training. Regarding the biennial flight review, SFAR training completed in an MU-2B airplane would satisfy requirements for the biennial flight review. The Regulatory Evaluation states that there are no additional costs for the flight review requirement because pilots are already required to comply with 14 CFR 61.56. Furthermore, Howell Enterprises already provides a flight review as part of the recurrent training course.
Many commenters wanted to train to proficiency instead of training to a set number of hours of training. The commenters also noted that the number of hours proposed is too much for some pilots and too little for others.
The FAA recognizes that for current and proficient MU-2B pilots, the proposal could be more expensive than training to proficiency. However, the FAA is adopting the proposal for these reasons. (1) After carefully reviewing existing training programs and the proposed MHI training program, the FAA determined that the training program hour requirements represent the minimum number of hours required to reach an acceptable level of safety and proficiency. (2) The MU-2B training program requires that the student complete a minimum number of program hours and that the student is trained to commercial pilot practical test standards (the FAA's Commercial Pilot Practical Test Standards is used as a guide to determine pilot proficiency under the MU-2B training program). (3) The FAA has monitored the completion times for training conducted using the MHI training program since it was approved, and this monitoring validated the number of training hours proposed.
A commenter stated although he can continue to receive training in the simulator (FTD), none of the approved training providers will provide training in a self-insured aircraft. This commenter finds completion of a § 61.56 flight review in an MU-2B will impose a significant additional economic cost on self-insured operators as they will be forced either to rent a commercially insured aircraft for the flight review or to insure their aircraft in the commercial market at a cost that may well render it economically unfeasible to continue to own an MU-2B.
The FAA is not requiring that MU-2B owners/operators buy insurance. It is the MU-2B owner/operator's choice to obtain insurance or not. A self-insured MU-2B owner/operator can still obtain a § 61.56 flight review in that owner/operator's MU-2B from a flight instructor, a designated pilot examiner, a check airman, or a FAA FSDO Principal Operations Inspector that is MU-2B current. The commenter is not limited to using the services of the three training providers named in the regulatory evaluation.
A commenter noted Reece Howell's requalification tuition is currently $4,000. SimCom's new initial course is 9 days long.
The FAA has verified this new information on the Web sites for Howell Enterprises and SimCom. The FAA also notes that Howell Enterprises is charging $7,000 for a 7-day initial training course, $3,000 for a 3-day recurrent training course, and $4,000 for a 4-day requalification course. The FAA has revised the cost estimates accordingly in the Regulatory Evaluation, and costs increased about $600,000 due to these revisions.
One commenter thinks the SFAR would have prevented approximately 4 accidents in the past 20 years, would cause an additional 2 accidents over the next 20 years, and would have a net reduction of 2 fatal accidents over the next 20 years.
The FAA disagrees. FAA safety inspectors, pilots, and mechanics examined the MU-2B accident history along with root causes and determined that 15 MU-2B accidents over 10 years could have been prevented if this SFAR had been in place.
One commenter noted that each additional hour of mandated flight training would burn valuable jet fuel. A qualified MU-2B pilot can fly the new procedures in a little over 2 hours. This SFAR mandated training would mean that 600+ pilots would burn 324,000 gallons of jet fuel with accompanying jet fumes unnecessarily entering our environment. Part 91 pilots and an unknown number of MU-2B qualified check airmen could double this number. This commenter finds such a large misuse of any fuel in an age of dependency on foreign oil absurd, and believes that the FAA has not addressed this problem.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from the National Environmental Policy Act for preparation of an environmental assessment or environmental impact statement in the absence of extraordinary circumstances. The FAA has reviewed paragraph 304 of this Order, Extraordinary Circumstances, before deciding to categorically exclude this rulemaking. During this review, the FAA determined that there are no extraordinary circumstances that would prevent a categorical exclusion. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraphs 307a, 312d, and 312f. The FAA also notes that all part 135 operators and most part 91 operators are already receiving annual pilot training. The training required by this SFAR standardizes this training and experience requirements of those conducting the training but does not significantly increase the amount of training already being done.
One commenter said the FAA should make the SFAR expire in 5 years and review the SFAR after 4 years to see if it is effective and still needed. The FAA will monitor the implementation of the SFAR and its effectiveness on a regular basis and at intervals much shorter than the 4 years proposed by the commenter.
Three commenters questioned whether it makes sense to add the economic costs of this training rule to the recently imposed financial burden that the MU-2B operators will incur from the 7 ADs issued in 2006. The FAA's 2005 Safety Evaluation concluded that the existing ADs were not issued to address the training and operational experience requirements that the FAA found necessary to lower the accident rate.
Several comments were submitted that did not address the proposed requirements in the NPRM. Some commenters offered suggestions that are outside the scope of the proposal and cannot be adopted without a reopening of the comment period in a new NPRM.
Mitsubishi Heavy Industries of America (MHIA) stated its opposition to descriptions of emergency procedures that compared their airplane to other
A commenter submitted questions about a workshop held for commercial MU-2B operators addressing implementation of the FSB report for part 135 operations. The FAA responded only to the portions of this letter that directly addressed the content of the proposed rule.
One commenter stated that the FAA should do an “unintended consequences study” for the proposed rule, considering such issues as devaluing the airplane, change in pilot population, forcing flights into low level VFR environment, and oversight costs. The FAA has addressed these issues within various sections of the preamble. The FAA is not aware of any unintended consequences and the commenters did not raise any. The FAA does not intend to conduct a specific study.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full final regulatory evaluation, a copy of which we have placed in the rules docket for this rulemaking (FAA-2006-24981).
In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” for the OMB but is “significant” for the DOT because of its impact on small entities; (4) will have a significant economic impact on a substantial number of small entities; (5) will not have a significant effect on international trade; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
The estimated cost of this final rule is about $25.9 million ($17.4 million in present value terms), and the estimated benefit is about $76.0 million ($49.3 million in present value terms). More detailed benefit and cost information is provided below.
All pilots and operators of the Mitsubishi MU-2B are affected by this rulemaking. (This also includes flight instructors, designated pilot examiners, training center evaluators, and check airmen.)
Assumptions:
• Discount rate—7%. Sensitivity analysis was performed on 3% and 7%.
• Period of Analysis—2008 through 2017.
We estimate the final rule will provide benefits of $76.0 million ($49.3 million in present value) from 2008 through 2017. In the absence of the requirements contained in this final rule, future accidents will occur on MU-2B airplanes in a manner similar to what has happened in the past. A key benefit of the final rule will be the avoidance of these accidents. Details of the benefit analysis are found in Section V of the Final Regulatory Evaluation in Rules Docket FAA-2006-24981.
The FAA estimates the compliance costs of this final rule to be about $25.9 million ($17.4 million in present value). The table below shows a breakdown of these total costs by category.
The Regulatory Flexibility Act of 1980 (Public Law 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a final regulatory flexibility analysis.
The FAA believes that this final rule will result in a significant economic impact on a substantial number of small entities. The purpose of this analysis is to provide the reasoning underlying the FAA determination.
Under Section 604 of the RFA, each final regulatory flexibility analysis (FRFA) shall contain:
(1) A succinct statement of the need for, and objectives of, the rule;
(2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments;
(3) A description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available;
(4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and
(5) A description of the steps the agency has taken to minimize the
In accordance with section 604, we address each component for this FRFA.
(1)
Under Title 49 of the United States Code, the FAA Administrator is required to consider the following matters, among others, as being in the public interest:
• Assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. [See 49 U.S.C. 40101(d)(1).]
• Promoting the safe flight of civil aircraft in air commerce by prescribing regulations that are necessary for safety. [See 49 U.S.C. 44701(a)(5).]
• Additionally, it is the FAA Administrator's statutory duty to carry out his or her responsibilities “in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation.” [See 49 U.S.C. 44701(c).]
This Special Federal Aviation Regulation (SFAR) creates new pilot training, experience, and operating requirements for persons operating the Mitsubishi MU-2B series airplane (MU-2B). These requirements follow an increased accident and incident rate in the MU-2B and are based on a Federal Aviation Administration safety evaluation of the MU-2B. This SFAR mandates additional training, experience, and operating requirements to improve the level of operational safety for the MU-2B.
(2)
1. Almost all commenters stated that the proposed compliance date of 180 days after the effective date of the final rule would adversely impact all pilots and training providers, and requested that the compliance date be extended to one year from the date of the final rule.
The FAA agrees and has made the appropriate changes in the final rule. A one-year compliance date provides a substantially longer transition period for both pilots and training providers, which reduces compliance costs.
2. One commenter stated that the FAA will kill the value of the MU-2B, and that he could not afford to walk away from a $400,000 investment that he could not use or sell. In related comments, other people stated that the loss of value could be more than $100,000 per airplane.
The commenter's concern would be completely valid if the FAA grounded the MU-2B because of the high accident rate. While that was seriously considered, we concluded that the training program will solve the accident problem.
The training program contained in this final rule includes ground and flight training for four different categories: Initial/transition, requalification, recurrent, and differences training. The estimated cost for Initial/transition training is approximately $25,000. Requalification cost for pilots currently getting training is roughly $5,000, and $13,000 for pilots not currently getting training. The recurrent training is about $2,000 per year additional for pilots currently getting training or $10,000 per year for pilots not currently getting training. Such an expense is very small compared with a $400,000 airplane and the accident rates that accompany the current deficiencies.
Lastly, the MU-2B price was falling before the rule was proposed. Several factors including the MU-2B safety record, higher maintenance costs, less availability of parts, and newer products with better capabilities may help explain the falling price of MU-2Bs.
3. A commenter indicated that the fleet value dropped significantly and that the MU-2Bs are a standalone division of the company. If the MU-2B division can not turn a profit, the business division will be shut down. Pilots and mechanics will be let go.
Again, the training costs are substantially lower than the value of the aircraft. The decision to shut down a certain division is a business decision that is not based solely on the value of the MU-2B. Although the value of a piece of capital equipment is useful in determining the assets of a business, the value of existing capital equipment is not relevant in a firm's decision to continue operations. The FAA does not believe this rule will force companies out of business.
4. A commenter stated that although we can continue to receive training in the simulator (FTD), none of the approved training providers will provide training in a self-insured aircraft. Requiring completion of a § 61.56 flight review in a MU-2B will, at best, impose a significant additional economic cost on self-insured operators as they will be forced either to rent a commercially insured aircraft for the flight review or to insure their aircraft in the commercial market at a cost that may well render it economically unfeasible to continue to own an MU-2B.
The FAA is not requiring that MU-2B owner/operators get insurance. It is the MU-2B owner/operator's choice to get insurance or not. A self-insured MU-2B owner/operator can still obtain a § 61.56 flight review in that owner/operator's MU-2B from a flight instructor, a designated pilot examiner, a check airman, or a FAA FSDO Principal Operations Inspector that is MU-2B current.
(3)
In conducting this final regulatory flexibility analysis we incorporate the most recent data from the aircraft registry (December, 2007). The size standards from the Small Business Administration for Air Transportation and Aircraft Manufacturing, specifies companies as small entities if they have fewer than 1,500 employees.
In conducting our analysis, we considered the economic impact on small-business entities. While there are no scheduled commercial operators (part 121) of the MU-2B airplane, there are small business owners of MU-2Bs who operate under part 91 or 135.
The part 91 operations of the MU-2B are either as a personal-use airplane or are for companies that operate them where aviation is not their primary business. Part 91 operations are not for hire or flown for profit. Part 135 operations are commuter or “on demand” operations.
In many cases employee data for owners and operators of aircraft (especially the aircraft operated in part 91), affected by this rule is not public.
Using publicly available data, there are 14 U.S. MU-2B operators, with less than 1,500 employees, who operate 61 airplanes. This equates to roughly 4 aircraft per operator.
Corporations are the registered owners of 306 MU-2Bs. Based upon the publicly available data, the total number of affected small entities ranges from 77 (4 airplanes/firm) to 245. The majority of the corporations operate the MU-2B in part 91 service, meaning aviation is not the primary business, and the airplane is not for hire. Publicly available information is scarce about these corporations. For this analysis we
In addition to the owners of the affected aircraft, companies that train pilots will themselves have to train their current MU-2B instructors to this new standard. The FAA has determined that it is essential that all flight training be conducted per a single standardized training program that reflects piloting procedures as found in the MU-2B training program. Based on our discussions with MU-2B pilot training centers we established that they will continue providing their MU-2B instructors with the latest training available. We believe that most MU-2B pilot training centers are small businesses but this final rule will result in offsetting training revenue exceeding their training costs.
(4)
An instructor must endorse a MU-2B pilot's logbook upon successful completion of training. The FAA estimates that it will take an instructor five minutes per pilot to endorse a pilot's logbook.
A copy of the airplane checklist must be accessible during each flight at the pilot station. The FAA estimates that the cost of a checklist will be about $200 and that the checklist will be ordered over a 2-year period.
(5)
We considered the following alternatives:
The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it responds to a domestic safety objective and is not considered an unnecessary barrier to trade.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million.
One commenter stated that “taken as a whole” the requirements of Title II of the Unfunded Mandates Reform Act of 1995 did apply. The FAA disagrees because the rule involves a value less than $128.1 million. This final rule does not contain such a mandate; therefore, the requirements of Title II do not apply.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted a copy of the new (or amended) information collection requirements(s) in this final rule to the Office of Management and Budget for its review. Affected parties, however, do not have to comply with the information collection requirements until the FAA publishes in the
• A certificated flight instruction (CFI) must complete the form “Training Course Final Phase Check” at the end of each training course. The FAA estimates that it will take a CFI 5 minutes per pilot to complete the form. Since there are about 600 MU-2B pilots, this will take a total of 50 hours per year. At an average MU-2B CFI hourly rate of $100 and an average value of time at $36.06 per hour, the total yearly cost of this requirement is $6,806 (600 pilots × 5/60 hours × ($100 per hour + $36.06 value of time per hour) = $6,806).
• A CFI must endorse an MU-2B pilot's logbook upon successful completion of training. The FAA estimates that it will take a CFI 5 minutes per pilot to endorse a pilot's logbook. Since there are about 600 MU-2B pilots, this will take a total of 50 hours per year. At an average MU-2B CFI hourly rate of $100 and an average value of time at $36.06 per hour, the total yearly cost of this requirement is $6,806 (600 pilots × 5/60 hours × ($100 per hour + $36.06 value of time per hour) = $6,806).
• A copy of the airplane checklist must be accessible during each flight at the pilot station. The FAA estimates that the cost of a checklist will be about $200 and that the checklist will be ordered over a 2-year period. We assume it takes an operator 10 minutes to order a checklist, and the cost of the checklist will be about $64,069 (311 MU-2B airplanes × $200/checklist × ($36.06 hourly value of time × 10/60 hours)). Annually, this cost would be $32,031 ($64,069 ÷ 2 years).
Average Total Annual Cost Burden: Approximately $45,641.
Average Total Annual Hour Burden: Approximately 101 hours.
An agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action 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, and therefore would not have federalism implications.
Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when changing regulations in title 14 of the CFR in manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish such regulatory distinctions as he or she considers appropriate. The FAA received no comments specific to Alaska.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f of the Order and involves no extraordinary circumstances.
The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
You can get an electronic copy of rulemaking documents using the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact a local FAA official, or the person listed under
Aircraft, Airmen, Aviation Safety, Incorporation by reference, Reporting and recordkeeping requirements, Safety measures.
Aircraft, Airmen, Airports, Aviation safety, Freight, Incorporation by reference, Reporting and recordkeeping requirements.
Air taxis, Aircraft, Airmen, Aviation safety, Incorporation by reference, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-44711, 45102-45103, 45301-45302.
For the text of the SFAR No. 108, see part 91 of this chapter.
49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180).
1.
2.
(b) A person, who does not meet the requirements of this SFAR, may manipulate the controls of the Mitsubishi MU-2B series airplane if a pilot-in-command meeting the applicable requirements of this SFAR is occupying a pilot station, and the flight is being conducted for one of the following reasons—
(1) The pilot-in-command is providing pilot training to the manipulator of the controls, and no passengers or cargo are carried on board the airplane;
(2) The pilot-in-command is conducting a maintenance test flight with a second pilot or certificated mechanic, and no passengers or cargo are carried on board the airplane; or
(3) The pilot-in-command is conducting simulated instrument flight and is using a safety pilot other than the pilot-in-command who manipulates the controls for the purposes of 14 CFR 91.109(b), and no passengers or cargo are carried on board the airplane.
(c) A person is required to complete
(1) 50 hours of documented flight time manipulating the controls while serving as pilot-in-command of a Mitsubishi MU-2B series airplane in the preceding 24 months; or
(2) 500 hours of documented flight time manipulating the controls while serving as pilot-in-command of a Mitsubishi MU-2B series airplane.
(d) A person is eligible to receive
(1) 50 hours of documented flight time manipulating the controls while serving as pilot-in-command of a Mitsubishi MU-2B series airplane in the preceding 24 months; or
(2) 500 hours of documented flight time manipulating the controls while serving as pilot-in-command of a Mitsubishi MU-2B series airplane.
(e) A person is required to complete
(f) Successful completion of Initial/transition training or Requalification training is a one-time requirement. A person may elect to retake Initial/transition training or Requalification training in lieu of Recurrent training.
(g) A person is required to complete Differences training if that person operates more than one MU-2B model. Differences training between the K and M models of the MU-2B airplane, and the J and L models of the MU-2B airplane, may be accomplished with Level A training. All other Differences training must be accomplished with Level B training. Persons that are operating two models of the MU-2B airplane are required to receive 1.5 hours of Differences training. Persons that are operating three or more models of the MU-2B airplane are required to receive 3.0 hours of Differences training. An additional 1.5 hours of Differences training is required for each model added at a later date. Differences Training is not a recurring annual requirement. Once a person has received Differences training between the applicable different models, no additional Differences training between those models is required.
3.
(1) The applicable requirements for ground and flight training on Initial/transition, Requalification, Recurrent, and Differences training have been completed, as specified in this SFAR, including Appendices A through D of this SFAR; and
(2) That person's logbook has been endorsed in accordance with paragraph (f) of this section.
(b) No person may manipulate the controls, act as pilot-in-command, or act as second-in-command, of a Mitsubishi MU-2B series airplane for the purpose of flight unless—
(1) That person satisfactorily completes, if applicable, annual Recurrent pilot training on the
(2) That person's logbook has been endorsed in accordance with paragraph (f) of this section.
(c) Satisfactory completion of the competency check required by 14 CFR 135.293 within the preceding 12 calendar months may not be substituted for the Mitsubishi MU-2B series airplane annual recurrent flight training of this section.
(d) Satisfactory completion of a Federal Aviation Administration sponsored pilot proficiency award program, as described in 14 CFR 61.56(e) may not be substituted for the Mitsubishi MU-2B series airplane annual recurrent flight training of this section.
(e) If a person complies with the requirements of paragraph (a) or (b) of this section in the calendar month before or the calendar month after the month in which compliance with these paragraphs are required, that person is considered to have accomplished the training requirement in the month the training is due.
(f) The endorsement required under paragraph (a) and (b) of this section must be made by—
(1) A certificated flight instructor meeting the qualifications of section 5 of this SFAR; or
(2) For persons operating the Mitsubishi MU-2B series airplane for a part 119 certificate holder within the last 12 calendar months, the 14 CFR part 119 certificate holder's flight instructor if authorized by the FAA and if that
(g) All training conducted for the Mitsubishi MU-2B series airplane must be completed in accordance with the applicable MU-2B series checklist listed in table 1 of this SFAR or an MU-2B series airplane checklist that has been accepted by the Federal Aviation Administration's MU-2B Flight Standardization Board.
4.
5.
(1) Each flight instructor who provides flight training in the Mitsubishi MU-2B series airplane must meet the pilot training and documentation requirements of section 3 of this SFAR before giving flight instruction in the Mitsubishi MU-2B series airplane.
(2) Each flight instructor who provides flight training in the Mitsubishi MU-2B series airplane must meet the currency requirements of paragraphs (a) and (c) of section 6 of this SFAR before giving flight instruction in the Mitsubishi MU-2B series airplane.
(3) Each flight instructor who provides flight training in the Mitsubishi MU-2B series airplane must have a minimum total pilot time of 2,000 pilot-in-command hours, 800 pilot-in-command hours in multiengine airplanes.
(4) Each flight instructor who provides flight training in the Mitsubishi MU-2B series airplane must have—
(i) 300 pilot-in-command hours in the Mitsubishi MU-2B series airplane, 50 hours of which must have been within the preceding 12 months; or
(ii) 100 pilot-in-command hours in the Mitsubishi MU-2B series airplane, 25 hours of which must have been within the preceding 12 months, and 300 hours providing instruction in a FAA-approved Mitsubishi MU-2B simulator or FAA-approved Mitsubishi MU-2B flight training device, 25 hours of which must have been within the preceding 12 months.
(b)
(1) Each flight instructor who provides flight training for the Mitsubishi MU-2B series airplane must meet the pilot training and documentation requirements of section 3 of this SFAR before giving flight instruction for the Mitsubishi MU-2B series airplane.
(2) Each flight instructor who provides flight training for the Mitsubishi MU-2B series airplane must meet the currency requirements of paragraph (c) of section 6 of this SFAR before giving flight instruction for the Mitsubishi MU-2B series airplane.
(3) Each flight instructor who provides flight training for the Mitsubishi MU-2B series airplane must have—
(i) A minimum total pilot time of 2000 pilot-in-command hours and 800 pilot-in-command hours in multiengine airplanes; and
(ii) Within the preceding 12 months, either 50 hours of Mitsubishi MU-2B series airplane pilot-in-command experience or 50 hours providing simulator or flight training device instruction for the Mitsubishi MU-2B.
(c)
(1) For the purpose of checking, designated pilot examiners, training center evaluators, and check airmen must have completed the appropriate training in the Mitsubishi MU-2B series airplane in accordance with section 3 of this SFAR.
(2) For checking conducted in the Mitsubishi MU-2B series airplane, each designated pilot examiner and check airman must have 100 hours pilot-in-command flight time in the Mitsubishi MU-2B series airplane and maintain currency in accordance with section 6 of this SFAR.
6.
(b) Instrument experience obtained in other category and class of aircraft may be used to satisfy the instrument currency requirements of 14 CFR 61.57 for the Mitsubishi MU-2B series airplane.
(c) Satisfactory completion of a flight review to satisfy the requirements of 14 CFR 61.56 is valid for operation of a Mitsubishi MU-2B series airplane only if that flight review is conducted in a Mitsubishi MU-2B series airplane. The flight review for Mitsubishi MU-2B series airplanes must include the
(d) A person who successfully completes the Initial/transition, Requalification, or Recurrent training requirements, as described in section 3 of this SFAR, also meets the requirements of 14 CFR 61.56 and need not accomplish a separate flight review provided that at least 1 hour of the flight training was conducted in the Mitsubishi MU-2B series airplane.
7.
(b) A person may operate a Mitsubishi MU-2B airplane in single pilot operations without a functional autopilot when—
(1) Operating under day visual flight rule requirements; or
(2) Authorized under a FAA approved minimum equipment list for that airplane, operating under instrument flight rule requirements in daytime visual meteorological conditions.
(c) No person may operate a Mitsubishi MU-2B series airplane unless a copy of the appropriate Mitsubishi Heavy Industries MU-2B Airplane Flight Manual is carried on board the airplane and is accessible during each flight at the pilot station.
(d) No person may operate a Mitsubishi MU-2B series airplane unless an MU-2B series airplane checklist, appropriate for the model being operated and accepted by the Federal Aviation Administration MU-2B Flight Standardization Board, is accessible for each flight at the pilot station and is used by the flight crewmembers when operating the airplane.
(e) No person may operate a Mitsubishi MU-2B series airplane contrary to the MU-2B training program in the Appendices of this SFAR.
(f) If there are any differences between the training and operating requirements of this SFAR and the MU-2B Airplane Flight Manual's procedures sections (Normal, Abnormal, and Emergency) and the MU-2B airplane series checklist specified in section 3(g), table 1, the person operating the airplane must operate the airplane in accordance with the training specified in section 3(g), table 1.
8.
9.
10.
(a) The Mitsubishi MU-2B Training Program consists of both ground and flight training. The minimum pilot training requirement hours are shown in Table 1 of this appendix for ground instruction and Table 2 of this appendix for flight instruction. An additional ground training requirement for Differences Training is shown in Table 3.
(b) The MU-2B is certificated by the Federal Aviation Administration (FAA) as a single pilot airplane. No training credit is given for second in command (SIC) training and no credit is given for right seat time under this program. Only the sole manipulator of the controls of the MU-2B airplane, Flight Training Device (FTD), or Level C or D simulator can receive training credit under this program.
(c) The training program references the applicable MU-2B airplane flight manual (AFM) in several sections. There may be differences between sequencing of procedures found in the AFM's procedures sections and the checklists, procedures, and techniques found within this training program. The FAA's Mitsubishi MU-2B SFAR requires that if there are any differences between the AFM's procedures sections (Normal, Abnormal, and Emergency) and the training and operating requirements of the Mitsubishi MU-2B SFAR, the person operating the airplane must operate the airplane in accordance with the training specified in the SFAR and this MU-2B training program.
(d) Minimum Programmed Training Hours
(e) Definitions of Levels of Training as Used in This Appendix
(1) LEVEL A Training—Training that is conducted through self instruction by the pilot.
(2) LEVEL B Training—Training that is conducted in the classroom environment with the aid of a qualified instructor who meets the requirements of this SFAR.
(3) LEVEL C Training—Training that is accomplished in an FAA-approved Level 5, 6, or 7 Flight Training Device (FTD). In addition to the basic FTD requirements, the FTD must be representative of the MU-2B cockpit controls and be specifically approved by the FAA for the MU-2B airplane.
(4) LEVEL E Training—Training that must be accomplished in the MU-2B airplane, Level C simulator, or Level D simulator.
All items in the ground training curriculum must be covered. The order of presentation is at the discretion of the instructor. The student must satisfactorily complete a written or oral exam given by the training provider based on this MU-2B Training Program.
(A) Completion of the MU-2B Training Program in this appendix requires successful completion of a final phase check taken in the MU-2B airplane or a Level C or D simulator for Initial/Transition training. The final phase check for Requalification or Recurrent Training may be taken in the MU-2B airplane, a Level C or D simulator, or in a Level 5, 6, or 7 FAA-approved MU-2B Flight Training Device (FTD). The final phase check must be conducted by a qualified flight instructor who meets the requirements of the MU-2B SFAR. Simultaneous training and checking is not allowed for Initial/Transition training.
(B) For pilots operating under 14 CFR part 135, checking must be done in accordance with applicable regulations. For the purpose of recurrent testing in 14 CFR 135.293(b), the MU-2B is considered a separate type of aircraft.
(C) The final phase check must be conducted using the standards contained in the FAA Commercial Pilot—Airplane Multi-Engine Land, and Instrument Rating—Airplane Practical Test Standards (PTS).
(D) The final phase check portion of the training is comprised of the following tasks for
(1) Preflight Check.
(2) Start and Taxi Procedures.
(3) * Normal Takeoff (X-Wind) (Two Engine).
(4) * Takeoff Engine Failure.
(5) Rejected Takeoff.
(6) * Steep Turns.
(7) * Approach to Stalls (3) (must include Accelerated Stalls).
(8) * Maneuvering with One Engine Inoperative—Loss of Directional Control (V
(9) Abnormal and Emergency Procedures—To include MU-2B operation in icing conditions without the autopilot or without trim-in-motion or automatic autopilot disconnect.
(10) * Precision Approach (One Engine Inoperative).
(11) Go Around/Rejected Landing.
(12) Normal Landing (X-Wind).
(13) * Landing with One Engine Inoperative.
(14) * Landing with Non-Standard Flap Configuration (0 or 5 degrees).
(15) Postflight Procedures.
(E) The following additional tasks are required for those airmen who possess an instrument rating. An (*) indicates those maneuvers for Initial/Transition training which must be completed in the MU-2B airplane, or a Level C or D simulator.
(1) Preflight Check.
(2) Unusual Attitudes.
(3) Abnormal and Emergency Procedures.
(4) Basic Instrument Flight Maneuvers.
(5) Area Arrival and Departure.
(6) Holding.
(7) Precision Approach (Two Engine).
(8) * Non-Precision Approaches (2)—Must include a Non-Precision Approach with One Engine Inoperative.
(9) Missed Approach from either Precision or Non Precision Instrument Approach (Two Engine).
(10) Landing from a Straight-In or Circling Approach.
(11) Circling Approach.
(12) Postflight Procedures.
(F) A form titled “Training Course Final Phase Check” has been included in this appendix for use in creating a training and final check record for the student and the training provider.
(A) General Flight Training Requirements: All flight training maneuvers must be consistent with this training program and the applicable MU-2B checklist accepted by the FAA. The maneuver profiles shown in Appendix D to this SFAR No. 108 are presented to show the required training scenarios. Profiles conducted in flight require planning and care on the part of both the instructor and student in order to provide the highest level of safety possible. The maneuver profiles shown in Appendix D to this SFAR No. 108 do not account for local geographic and flight conditions. The instructor and student must consider local conditions when performing these maneuvers in flight.
(B) Special Emphasis Items: Certain aspects of pilot knowledge, skills and abilities must be emphasized and evaluated during the training and checking process of the MU-2B Training Program.
(1) Accelerated stall awareness and recovery procedures with emphasis on configuration management. Awareness of the margin to stall in all flight operations and configurations must be emphasized throughout training.
(2) V
(3) Airspeed management and recognition of airspeed deterioration below recommended speeds and recovery methods in this training program must be emphasized throughout training and checking.
(4) Knowledge of icing conditions and encounters must be emphasized throughout training and checking including: Equipment requirements, certification standards, minimum airspeeds, and the use of the autopilot and other applicable AFM procedures.
(5) Airplane performance characteristics with all engines operating and with one engine inoperative must be emphasized.
(C) MU-2B Flight Training Program Proficiency Standards.
(1) Each pilot, regardless of the level of pilot certificate held, must be trained to and maintain the proficiency standards described below.
(a) General VFR/IFR.
(b) Instrument Approach—Final Approach Segment.
(c) In all cases, a pilot must show complete mastery of the aircraft with the outcome of each maneuver or procedure never seriously in doubt.
(D) Maneuvers and Procedures. All flight training maneuvers and procedures must be conducted as they are applicable to the MU-2B and each type of operations involved.
(1) Preflight Inspection—The pilot must—
(a) Conduct an actual visual inspection of the exterior and interior of the airplane, locating each item and explaining briefly the purpose of inspecting it; and
(b) Demonstrate the use of the appropriate checklist, appropriate control system checks, starting procedures, radio and electronic equipment checks, and the selection of proper navigation and communications radio facilities and frequencies prior to flight.
(2) Taxiing—this maneuver includes taxiing in compliance with instructions issued by the appropriate ATC facility or by the person conducting the check.
(3) Pre-Takeoff Checks—The pilot must satisfactorily complete all pre-takeoff aircraft systems and powerplant checks before takeoff.
(1) Normal—One normal takeoff, which for the purpose of this maneuver, begins when the airplane is taxied into position on the runway to be used.
(2) Instrument Takeoff—Takeoff with simulated instrument conditions at or before reaching an altitude of 200 feet above the airport elevation and visibility of 1800 RVR.
(3) Crosswind—One crosswind takeoff, if practical, under the existing meteorological, airport and traffic conditions.
(4) Powerplant Failure—One takeoff with a simulated failure of the most critical powerplant at a point after Vlof. In the MU-2B airplane, all simulated powerplant failures must only be initiated when the person conducting the training or checking determines that it is safe under the prevailing conditions. The instructor must assure that the power lever does not move beyond the flight idle gate.
(5) Rejected Takeoff—A rejected takeoff performed in an airplane during a normal takeoff run after reaching a reasonable speed determined by giving due consideration to aircraft characteristics, runway length, surface conditions, wind direction and velocity, brake heat energy, and any other pertinent factors that may adversely affect safety or the airplane.
(6) Area departure—Demonstrate adequate knowledge of departure procedures, establishing appropriate ATC communications and following clearances.
(1) Steep bank turns—Each steep turn must involve a bank angle of 50 degrees with a heading change of at least 180 degrees but no more than 360 degrees.
(2) Approaches to stalls—Must be performed in each of the following configurations; takeoff, clean, and landing. One approach to a stall must be performed in either the takeoff, clean, or landing configuration while in a turn with a bank angle between 15 degrees and 30 degrees.
(3) Accelerated stalls—must be done in the flaps 20 and flaps 0 configurations.
(4) Recovery procedures must be initiated at the first indication of a stall.
(1) Runway trim.
(2) Normal and abnormal operations of the following systems:
(a) Pressurization.
(b) Pneumatic.
(c) Air conditioning.
(d) Fuel.
(e) Electrical.
(f) Flight control.
(g) Anti-icing and de-icing.
(h) Autopilot.
(i) Stall warning devices, as applicable.
(j) Airborne radar and weather detection devices.
(k) Other systems, devices or aids available.
(l) Electrical, flight control and flight instrument system malfunction or failure.
(m) Landing gear and flap system malfunction or failure.
(n) Failure of navigation or communications equipment.
(1) Powerplant failure.
(2) Powerplant, cabin, flight deck, wing and electrical fires.
(3) Smoke control.
(4) Fuel jettisoning, as applicable.
(5) Any other emergency procedures outlined in the appropriate AFM or FAA-accepted checklist.
(1) Area departure.
(2) Use of navigation systems including adherence to assigned course and/or radial.
(3) Holding procedures.
(4) Aircraft approach category airspeeds.
(5) Approach procedures: Each instrument approach must be performed according to all procedures and limitations approved for that facility. An instrument approach procedure begins when the airplane is over the initial approach fix for the approach procedure being used and ends when the airplane touches down on the runway or when transition to missed approach configuration is completed.
(a) ILS, ILS/DME, approach.
(i) A manually controlled ILS with a powerplant inoperative; occurring before initiating the final approach course and continuing to full stop or through the missed approach procedure.
(ii) A manually controlled ILS utilizing raw data to 200 feet or decision height (DH).
(iii) An ILS with the autopilot coupled.
(b) Non-precision approaches.
(i) NDB, NDB/DME approach, straight in or circle.
(ii) VOR, VOR/DME, straight in or circle.
(iii) LOC, LOC/DME, LOC backcourse.
(iv) GPS approach (If the aircraft/FTD/flight simulator has a GPS installed, the applicant must demonstrate GPS approach proficiency.)
(v) ASR approach.
(c) Missed approach procedure: One missed approach procedure must be a complete approved missed approach procedure as published or as assigned by ATC.
(i) From a precision approach.
(ii) From a non-precision approach.
(iii) With a simulated powerplant failure.
(d) Circling approach.
(i) The circling approach must be made to the authorized MDA and followed by a change in heading and the necessary maneuvering (by visual reference) to maintain a flight path that permits a normal landing on the runway.
(ii) The circling approach must be performed without excessive maneuvering and without exceeding the normal operating limits of the airplane and the angle of bank must not exceed 30°.
(1) Airport orientation.
(2) Normal landings with stabilized approach.
(3) Crosswind landings.
(4) From a precision instrument approach.
(5) From a precision instrument approach with a powerplant inoperative.
(6) From a non-precision instrument approach.
(7) From a non-precision instrument approach with a powerplant inoperative.
(8) From a circling approach or VFR traffic pattern.
(9) Go Around/Rejected landings—a normal missed approach procedure or a visual go-around after the landing is rejected. The landing should be rejected at approximately 50 feet and approximately over the runway threshold.
(10) Zero flap landing.
(a) Runway requirements.
(b) Airspeeds.
(A) The Maneuver Profiles are provided to develop pilot proficiency with the procedures and techniques contained within this MU-2B Flight Training Program.
(B) Though constructed for use in the airplane they may also be used in the Flight Training Device (FTD). When an FTD is used, a maneuver may be performed at lower altitudes or carried to its completion. When training is conducted in the MU-2B airplane, all maneuvers must be performed in a manner sufficient to evaluate the performance of the student while never jeopardizing the safety of the flight.
(C) The maneuvers profiles are broken down into three sections by similar aircraft model groups. The three sections of this program are:
(1) Marquise (−60), Solitaire (-40), N (-36A), P (-26A)—Figures A-1 through A-28
(2) J (-35), K (-25), L (-;36), M (-26)—Figures B-1 through B-28
(3) B, D (-10), F (-20), G (-30)—Figures C-1 through C-28
(D) Each MU-2B profile in its respective section follows the outline below.
(1) Normal Takeoff (5- and 20-degrees flaps).
(2) Takeoff Engine Failure (5- and 20-degrees flaps).
(3) Takeoff Engine Failure on Runway or Rejected Takeoff.
(4) Takeoff Engine Failure after Liftoff—Unable to Climb (Classroom or FTD only).
(5) Steep Turns.
(6) Slow Flight Maneuvers.
(7) One Engine Inoperative Maneuvering/Loss of Directional Control.
(8) Approach to Stall (clean configuration/wings level).
(9) Approach to Stall (takeoff configuration/15- to 30-degrees bank).
(10) Approach to Stall (landing configuration/gear down/40-degrees flaps).
(11) Accelerated Stall (no flaps).
(12) Emergency Descent (low speed).
(13) Emergency Descent (high speed).
(14) Unusual Altitude Recovery (nose high).
(15) Unusual Altitude Recovery (nose low).
(16) Normal Landing (20- and 40-degrees flaps).
(17) Go Around/Rejected Landing.
(18) No Flap or 5-degrees flaps Landing.
(19) One Engine Inoperative Landing (5- and 20-degrees flaps).
(20) Crosswind Landing.
(21) ILS and Missed Approach.
(22) Two Engine Missed Approach.
(23) One Engine Inoperative ILS and Missed Approach.
(24) One Engine Inoperative Missed Approach.
(25) Non-Precision and Missed Approach.
(26) One Engine Inoperative Non-Precision and Missed Approach.
(27) Circling Approach at Weather Minimums.
(28) One Engine Inoperative Circling Approach at Weather Minimums.
(A) The following should be considered in reference to power settings and airspeeds:
(1) Power settings shown in
(2) Some pilots prefer to set power initially using fuel flow, because the fuel flow system is not field adjustable. Fuel flow settings refer to engine operations only. If fuel flow is used to set power for takeoff, check torque and temperature after setting fuel flow and adjust torque or temperature, whichever is limiting, for maximum takeoff power prior to liftoff.
(3) Improperly adjusted torque or improperly calibrated temperatures are a safety of flight issue and must be checked and corrected prior to conducting flight training.
(4) The pilot should refer to the performance section of the airplane flight manual to determine actual speeds required for his/her particular model and specific weight for any given operation.
(A) Maneuvers conducted at altitude such as stalls and steep turns must always be preceded by clearing turns and at least one crew member must continually clear the flying area during the maneuver. The instructor must emphasize the importance of clearing the area, even if the maneuvers are being done in an FTD or simulator. This will create the habit pattern in the pilot to clear the area before practicing maneuvers.
(B) During stalling maneuvers and upon recognition of the indication of a stall, the pilot must call the “stall” to the instructor and then proceed with the recovery. In addition, during training, the pilot must announce the completion of the stall recovery maneuver. Instructors must exercise caution when conducting stall maneuvers and be prepared to take the controls if the safe outcome of the maneuver is in doubt.
(C) During accelerated stall maneuvers, it is important that the instructor pay close attention to the position of the ball throughout the maneuver and recovery so as to maintain coordinated flight. Stall recognition and recovery is the completion criteria, and it is not necessary to continue the stall beyond the stick shaker to aerodynamic buffet.
(D) When demonstrating a loss of directional control with one engine inoperative, the engine failure must only be simulated. During the slowing of the aircraft to demonstrate loss of directional control, the instructor should use the rudder block method to allow the student to experience the loss of directional control associated with VMC, at a speed of approximately 10 knots above actual VMC.
To accurately simulate single engine operations, zero thrust must be established. The zero thrust torque setting will vary greatly from model to model. It is important to establish to zero thrust torque setting for your aircraft. This requires that the aircraft be flown on one engine to establish the zero thrust setting. This is accomplished by establishing single engine flight with one propeller feathered and noting the performance with the operating engine at maximum torque or temperature. It is suggested that two airspeeds be established for zero thrust power settings. They are 120 kts, flaps 20, gear up for takeoff and 140 knots, flaps 5, gear up for in-flight and approach maneuvering. Once performance has been established and recorded for each airspeed, restart the other engine and find the torque setting that duplicates the performance (climb or descent rate, airspeed) as was recorded with that propeller feathered. This torque setting will be zero thrust for the simulated inoperative engine. The student/pilot should note that the performance experienced with one engine operating at flight idle, may produce greater performance than if the engine were stopped and the propeller feathered.
Pre-maneuver briefings for any maneuver that requires either an actual engine shutdown or a simulated engine failure must be undertaken when using an aircraft. In the case of an actual engine shutdown, a minimum altitude of 3,000 ft above ground level (agl) must be used and done in a position where a safe landing can be made at an airport in the event of difficulty.
(A) When using the profiles to establish the procedure for configuring the aircraft for takeoff or landing, it is important to understand that each task for the procedure, as noted on the procedure diagram, establishes the point at which each task should have been completed and not the exact point at which the task should be accomplished unless otherwise stated in the task box. Numbers which represent performance such as descent rates or other maneuvering information that is not contained in the aircraft flight manual are shown in
(B) In all takeoff profiles the prompt for the gear to be retracted is “No Runway Remaining, Gear Up”. This should set the decision point for making a landback after an engine failure and should normally be reached at altitudes of less than 100 ft AGL. It is impractical to attempt a landback from above 100 ft AGL, because it can require distances up to 10,000 ft from the beginning of the takeoff run to bring the aircraft to a stop. But, even on very long runways, landback will not be necessary above 100 ft AGL and above Vyse for the flap configurations, if the single engine climb capability found in the POM charts, with the gear up, is positive (250 fpm or better) and obstacles clearance is not an issue.
(C) The manufacturers FAA-accepted checklists and checklist in Appendix C to this SFAR No. 108 describe a procedure for the discontinuance of flight following an engine failure after takeoff and the realization that the aircraft cannot climb. The corresponding flight profile in this training program is “Takeoff Engine Failure, Unable to Climb”. This maneuver must not be attempted in the aircraft, but must be the subject of a classroom discussion or be demonstrated in the FTD.
(D) The focus of all landing procedures, whether two engine or engine out, is on a stabilized approach from an altitude of 500 feet. This will not be possible for all approach procedure maneuvering, especially during non-precision or circle to land approaches. Approach procedures for these two approaches should be stabilized from the point at which the pilot leaves the Minimum Descent Altitude for the landing.
(E) When performing one engine inoperative approaches, landings or missed approaches, the instructor must be prepared to add power to the simulated failed engine at the first sign of deteriorating airspeed or other situation that indicates the student's inability to correctly perform the maneuver.
(F) While maneuvering in the pattern or during instrument approach procedures with one engine inoperative, a 30° bank angle must not be exceeded. This will become especially important when executing non-precision and circle to land approaches.
(A) During training, either in the FTD or in the aircraft, the performance of emergency and abnormal procedures is critical to the completion of the training program. All emergency and abnormal procedures should be simulated when training in the MU-2B airplane.
(B) When presenting emergency scenarios to the student, the instructor must not introduce multiple emergencies concurrently.
SBT flight training creates an environment of realism. The SBT programs utilize a highly structured flight operation scenario to simulate the overall flight environment. The pilot is required to plan a routine, point-to-point flight and initiate the flight. During the conduct of the flight, “reality-based” abnormal or emergency events are introduced without warning. Because the pilot is constantly operating in the world of unknowns, this type of training also builds in the “startle factor”, and just as in the real-world, the consequences of the pilot's actions (decisions, judgment, airmanship, tactile skills, etc.) will continue to escalate and affect the outcome of the planned flight. Although flying skills are an integral part of this type of training, SBT enables the pilot to gain experience in dealing with unexpected events and more importantly further enhances the development of good judgment and decisionmaking.
49 U.S.C. 106(g), 40113, 41706, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722, 45101-45105.
For the text of SFAR No. 108, see part 91 of this chapter.
Office of the Secretary, HUD.
Proposed rule.
This proposed rule would establish a roster of approved independent public accountants and public accounting firms (IPAs) that would be permitted to perform audits or related services required by participants in certain HUD programs and submitted to HUD. The proposed rule would also establish eligibility, application, and removal procedures for IPAs listed on the IPA Roster. HUD believes this proposed rule would implement an additional protection to ensure the accuracy of financial data submitted to HUD by its program participants.
Interested persons are invited to submit comments regarding this proposed rule. There are two methods for comments to be submitted as public comments and to be included in the public comment docket for this rule. Additionally, all submissions must refer to the above docket number and title.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
The Office of Public and Indian Housing, Real Estate Assessment Center (REAC), Attention: Elizabeth Hanson, Deputy Assistant Secretary, Department of Housing and Urban Development, Office of Public and Indian Housing Real Estate Assessment Center, 550 12th Street, SW., Suite 100, Washington, DC 20410; telephone number (888) 245-4860 (this is a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339. Additional information is available from the PIH-REAC Internet site at
HUD's regulations at 24 CFR part 5, subpart H (currently consisting of a single section, 24 CFR 5.801) establish uniform financial reporting standards for the Department's public housing, Section 8 housing, and insured housing programs. The uniform financial reporting standards apply to those entities or individuals identified in 24 CFR 5.801. They are: (1) Public housing agencies (PHAs); (2) owners of housing assisted under any Section 8 project-based housing assistance payments program; (3) owners of multifamily projects receiving HUD assistance or with mortgages insured, coinsured, or held by HUD; and (4) HUD-approved Title I and Title II nonsupervised lenders, nonsupervised mortgagees, and nonsupervised loan correspondents (collectively referred to as “covered entities”). The uniform financial reporting standards require these entities or individuals to submit annual financial information electronically and in accordance with Generally Accepted Accounting Principles (GAAP). HUD relies on this audited financial information to ensure the integrity of financial data submitted to HUD.
For the financial information required of HUD program participants, as described in 24 CFR 5.801, HUD is proposing to establish an independent public accountant (IPA) roster (IPA Roster or Roster) and to provide eligibility, application, and removal procedures for the IPA Roster. The quality and accuracy of financial data submitted to HUD begins with selecting qualified IPAs who agree to comply with HUD's requirements with respect to the provision of audits or related services. The IPA Roster would list IPAs that have been approved to perform audits or related services for covered entities. IPAs include individuals employed by public accounting firms (including a solo practice) or a State Auditor's Office who are licensed by a regulatory authority of a State or other political subdivision of the United States both before and after December 31, 1970. IPAs also include certified public accountants. As proposed, covered entities or individuals would be required to select an IPA that is listed on the IPA Roster for their particular jurisdiction to perform the audits or related services required by HUD. Any IPA seeking to perform audits or related services for the entities or individuals noted above would be required to be a listed IPA sole practitioner, be a member or partner of a listed IPA, or be a full-time employee of a listed IPA.
It is important to note, however, that while HUD is committed to improving the quality and accuracy of the financial information submitted to it, the inclusion of an IPA on the IPA Roster would not create or imply any warranty or endorsement by HUD of a listed IPA to the entities listed in 24 CFR 5.801, or to any other organization or individual user of the resulting audited financial statements. Nor would such inclusion represent a warranty of the specific audits or related services performed by a listed IPA. Such inclusion would mean only that the IPA has met the qualifications and conditions prescribed by the Secretary for placement on the IPA Roster.
This proposed rule would establish the requirements for listing on the IPA Roster. In order to be placed on the IPA Roster, each IPA would be required to submit an application to HUD identifying the specific state(s), territory(ies), Commonwealth(s), or District of the United States in which
To be eligible for listing on the IPA Roster, an IPA would be required to:
1. Be licensed or authorized to practice in each of the specific jurisdictions for which the IPA is to be listed;
2. Not be, nor employ or contract with anyone for the performance of audits or related services who is, suspended, debarred, voluntarily excluded, subject to a limited denial of participation, or subject to any order of disbarment or other denial of right to practice before the Securities and Exchange Commission, or subject to a jurisdiction's disciplinary action that has resulted in the revocation, suspension, or surrender of a license or authorization to practice public accounting;
3. Agree to accept only those engagements for audits or related services where it meets the minimum qualifications specified by the Generally Accepted Government Auditing Standards (GAGAS);
4. Agree to accept engagements for only those entities listed in 24 CFR 5.801 that are located in jurisdictions in which the IPA is listed;
5. Agree to establish and implement quality control procedures sufficient to satisfy the quality control standards of GAGAS;
6. Agree to comply with the professional standards applicable to any audit or related service performed;
7. Agree to comply with any accountancy laws and rules of each jurisdiction for which the IPA is to be listed;
8. Agree to comply with all applicable HUD rules and instructions relating to financial reporting, audits, and related services performed for the entities listed in 24 CFR 5.801;
9. Agree to submit to and cooperate with reviews by HUD of the IPA's performance of audits or related services for those entities listed in 24 CFR 5.801;
10. Agree to notify HUD if the IPA or any member or employee of the firm is, or has been, within the previous 5 years, indicted or otherwise charged with or convicted of any offense listed in 24 CFR 24.800(a);
11. Agree to notify HUD if the IPA or any member or employee of the firm is, or has been, within the previous 5 years, adjudged to be civilly liable for any of the offenses listed in 24 CFR 24.800(a); and
12. Agree to comply with any requests for information made by HUD. The IPA would be required to comply with all agreements required to be listed on the IPA Roster immediately upon approval for such listing.
An IPA who is eligible to perform audits or related services, and who is engaged by a covered entity or entities, has a contractual responsibility to those entities. Furthermore, the IPA also has a responsibility to HUD, whenever a covered entity or entities for which the IPA provides audits or related services are required to submit those audits to HUD. Therefore, IPAs listed on the IPA roster will be responsible for: (1) Complying with any agreements with HUD immediately upon their approval for listing on the IPA Roster and continually thereafter, including, but not limited to, agreements required for listing on the IPA Roster; (2) maintaining compliance with any other eligibility requirements for listing on the IPA Roster for each jurisdiction in which they are listed; and (3) notifying HUD within 30 days of any change in their continued compliance with eligibility requirements.
In order to safeguard the continued quality and accuracy of the audits and related services performed by listed IPAs and, ultimately, the integrity of the financial data submitted to HUD, this proposed rule would establish a removal process by which the listed IPAs may be removed from the IPA Roster. Removal of an IPA from the IPA Roster would not preclude HUD or the federal government from also bringing a false claims action, taking action against an IPA under 24 CFR part 24 (“Government Debarment and Suspension and Governmentwide Requirements for Drug-Free Workplace (Grants)”), or from seeking any other remedy against an IPA available to HUD or the federal government by statute or otherwise.
This proposed rule would allow HUD to remove an IPA from the IPA Roster who fails to fulfill its responsibilities as a listed IPA, for cause at any time. Cause for removal would include, but would not be limited to: (1) Failing to comply with any agreements with HUD, including, but not limited to, agreements identified at proposed new 24 CFR 5.810(a) as requirements for eligibility; (2) failing to maintain compliance with any other eligibility requirements for listing on the IPA Roster for each jurisdiction in which the IPA is listed; (3) failing to notify HUD within 30 days of any change in their continued compliance with eligibility requirements; or (4) making, or causing to be made, any false certification to HUD.
In certain circumstances described below, the proposed rule would require the automatic removal of an IPA from the IPA Roster, while in other circumstances the proposed rule would provide the IPA with an opportunity to respond and attend a conference before the IPA's removal from the IPA Roster. The proposed rule would require the automatic removal of an IPA from the IPA Roster: (1) When the IPA fails to maintain compliance with eligibility requirements by being debarred, suspended, voluntarily excluded, subject to a limited denial of participation, or subject to any order of disbarment or other denial of right to practice before the Securities and Exchange Commission; or (2) when the IPA fails to maintain compliance with eligibility requirements by losing, whether by revocation, suspension, surrender, or other means, its license or authorization to practice in any particular jurisdiction. However, if the IPA's license or authorization to practice lapsed or expired for reasons other than disciplinary actions, the IPA would be removed from the IPA Roster only for that specific jurisdiction. Under any of these automatic removal circumstances, the procedures for contestable removal set forth in 24 CFR 5.814(d) would not be applicable.
Except in the above cases of automatic removals, the removal procedures proposed by this rule would require HUD to give an IPA written notice of the proposed removal from the IPA Roster. Such notice would include the reasons for the proposed removal. The IPA would then be given 30 calendar days from the date of the removal notice to submit a written response opposing the removal. During this period, the IPA would also have the ability to submit a written request for a conference to discuss the proposed removal. If the IPA does not submit a response opposing the
If the IPA opposes the proposed removal, the Deputy Assistant Secretary of the Real Estate Assessment Center (REAC), or a designee (“Reviewing Official”), would: (1) Review the proposed removal notice along with any supporting information and the response to the notice; and (2) conduct the conference with the IPA, if requested, before making a determination as to whether the IPA should be removed from the IPA Roster. When a request for a conference is received, the Reviewing Official would schedule the conference within 30 calendar days of the date the request is received. The Reviewing Official would be required to issue a determination within 30 calendar days of receiving the IPA's written response, or, if a conference is requested, within 30 calendar days of the closing of the conference. The Reviewing Official may affirm or deny the IPA's proposed removal from the IPA Roster, or the Reviewing Official may find cause for removal but order the removal held in abeyance. In no instance would the Reviewing Official be the individual who made the initial determination to propose the IPA's removal from the IPA Roster.
The removal of the IPA would become effective on the date of HUD's notice affirming its initial removal decision. When the IPA's removal is held in abeyance, the effective date of the IPA's removal would be set for a date specified in the future to allow the IPA to demonstrate that all causes for removal have been eliminated. If the IPA successfully demonstrates that all causes for removal have been eliminated, the order of termination would be withdrawn; however, if the IPA fails to demonstrate that all causes for removal have been eliminated, the IPA would be removed from the IPA Roster as of the effective date listed in the order of abeyance.
Where HUD is considering the removal of an IPA who has, during the previous 3 years, performed audits or related services for covered entities covered by this rule, HUD will endeavor to ascertain whether those covered entities receive funds from other federal agencies. Where HUD determines that the IPA has performed audits or related services for covered entities receiving federal funds from other agencies, HUD will notify the agencies providing such funding prior to taking any removal action.
An IPA who has been removed from the IPA Roster would not be permitted to enter into any contract or engagement for audits or related services with covered entities. While the IPA would be permitted to continue performance under any contract or engagement in effect at the time of the removal, the IPA would not be permitted to extend or renew any contract or engagement, with the exception of no-cost time extensions, unless the Reviewing Official were to grant an exception. The granting of any such exception would be within the sole discretion of the Reviewing Official and would be granted only when determined to be in the interest of HUD. Additionally, nothing in this rule would affect an entity's discretion to terminate an existing contract or engagement as a result of the IPA's removal, or due to the circumstances precipitating such removal.
To ensure that IPAs affected by this rule have adequate time to register with HUD, HUD plans to delay, at the final rule stage, the implementation date of this rule for a period of 12 months following publication of the final rule. During this phase-in period, HUD plans to undertake outreach to covered entities and IPAs that have registered for a unique IPA identifier (UII) under the existing Uniform Financial Reporting Standards (UFRS) regulation of the transition to the new requirements that provide for listing on the IPA Roster. HUD intends to undertake such outreach utilizing email notifications, website postings, mailings, system messages, presentations at industry conferences and seminars, press releases, and, to the extent necessary, targeted phone calls, to ensure that all IPAs registered under existing regulations, and other interested IPAs, are aware of this new rule. HUD intends to begin its outreach efforts by ensuring that IPAs and covered entities are notified of this proposed rule, when published. HUD plans to increase these efforts following the publication of the final rule, continuing through the one-year phase-in period following publication of the final rule. Thirty days prior to the expiration of the phase-in period, HUD plans to contact all IPAs registered with HUD under the current UFRS regulation and all covered entities notifying them of the expiration of the phase-in period and reminding them of the approaching implementation date of the IPA Roster regulation. HUD has set a goal of receiving applications from 90 percent of currently registered IPAs during the phase-in period.
Upon the implementation date of the final IPA Roster rule, the UIIs of IPAs registered under the existing UFRS regulation that have failed to seek and obtain approval for listing on the IPA Roster will be deactivated. Any IPA whose UII has been deactivated remains able to apply for placement on the IPA Roster, in accordance with the procedures of any final IPA Roster rule.
HUD recognizes the costs, in terms of time and resources, that will be committed to the implementation of an IPA Roster rule. However, the Department believes that the benefits to both the Department and the entities covered by this rule far outweigh any costs associated with an IPA Roster rule. Specifically, if adopted, the IPA Roster rule would provide the Department a significant measure of confidence that the audits being submitted to it have been performed by licensed IPAs in accordance with professional standards. Audits are a critical management tool for both the federal government and the recipients of federal funding, and it is essential to the effective oversight and monitoring of billions of federal dollars that these audits be performed properly.
At this time, the Department does not have the ability to verify that IPAs are licensed or competent before an IPA is engaged to perform a covered service. Once implemented, the IPA Roster rule would provide the Department with a tool to ensure that those auditors being engaged to perform work for covered entities are, at a minimum, licensed in the jurisdictions in which they are performing those covered services and are willing to perform the covered services in accordance with professional standards.
Additionally, the remedies currently available to the Department to address unlicensed or unprofessional auditors are the costly and very time-consuming actions for debarment or suspension. In the Department's experience, such actions are generally complex and technical, and require an excessive amount of time and resources to prosecute. Once implemented, the IPA Roster rule would result in significant savings of departmental enforcement resources by enabling the Department to take action in a timely and efficient manner if it identifies an IPA that is not performing in accordance with established auditing standards or the provisions of the IPA Roster rule. Thus, the Department believes that the improved oversight of federal funds and program performance resulting from this rule, along with the time and monetary
HUD recognizes that this proposed rule, which would establish a roster of approved independent public accountants and public accounting firms, is an innovative method to attempt to improve the quality of the audits submitted to HUD and improve HUD's oversight of federal funds and program performance. Establishing such a roster would also be unique to the federal government. For these reasons, HUD encourages the public to submit comments on the potential effectiveness of the rule and on the general concept of establishing a roster of approved independent public accountants and public accounting firms as a means to improve the quality of the audit of federal funds and program performance.
In creating and maintaining the IPA Roster, or in taking action to remove a listed IPA, HUD is cognizant that section 222 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) requires the Small Business and Agriculture Regulatory Enforcement Ombudsman to “work with each agency with regulatory authority over small businesses to ensure that small business concerns that receive or are subject to an audit, on-site inspection, compliance assistance effort or other enforcement-related communication or contact by agency personnel are provided with a means to comment on the enforcement activity conducted by this personnel.” To implement this statutory provision, the Small Business Administration has requested that agencies include the following language on agency publications and notices that are provided to small business concerns at the time the enforcement action is undertaken. The language is as follows:
The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of [insert agency name], you will find the necessary comment forms at
As HUD stated in its notice describing HUD's actions on the implementation of SBREFA, which was published on May 21, 1998 (63 FR 28214), HUD will work with the Small Business Administration to provide small entities with information on the Fairness Boards and National Ombudsman program, at the time enforcement actions are taken, to ensure that small entities have the full means to comment on the enforcement activity conducted by HUD.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action,” as defined in section 3(f) of the Order (although not economically significant, as provided in section 3(f)(1) of the Order). The docket file is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, an advance appointment to review the docket file must be scheduled by calling the Regulations Division at (202) 708-3055.
The information collection requirements contained in this rule have been submitted to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, HUD may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number. Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must be received within 60 days from the date of this rule. The burden of the information collections in this proposed rule is estimated as follows:
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information to:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Under the provisions of 5 CFR part 1320, OMB is required to make a decision concerning this collection of information between 30 and 60 days after today's publication date. Therefore, a comment on the information collection requirements is best assured of having its full effect if OMB receives the comment within 30 days of today's publication. This time frame does not affect the deadline for comments to the agency on the proposed rule, however. Comments must refer to the proposal by name and docket number FR-5054-P-01 and must be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503, Fax: (202) 395-6974, and Directives Management Officer, Office of Public and Indian Housing, U.S. Department of Housing and Urban Development, 451 Seventh
This proposed rule establishes placement and removal procedures for HUD's IPA Roster. This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321,
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601,
Notwithstanding HUD's determination that this rule does not have a significant economic impact on a substantial number of small entities, HUD specifically invites comments from all entities, including small entities, regarding less burdensome alternatives to this rule that will meet HUD's objectives as described in this preamble.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule does not impose any federal mandate on any state, local, or tribal governments, or on the private sector within the meaning of UMRA.
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from publishing any rule that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or that preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Administrative practice and procedure; Aged; Claims; Crime; Government contracts; Grant programs—housing and community development; Individuals with disabilities; Intergovernmental relations; Loan programs—housing and community development; Low and moderate income housing; Mortgage insurance; Penalties; Pets; Public housing; Rent subsidies; Reporting and recordkeeping requirements; Social security; Unemployment compensation; Wages.
Accordingly, for the reasons stated in the preamble, HUD proposes to amend 24 CFR part 5 as follows:
1. The authority citation for 24 CFR part 5 continues to read as follows:
42 U.S.C. 3535(d), unless otherwise noted.
2. Add new §§ 5.802, 5.804, 5.806, 5.808, 5.810, 5.812, 5.814, 5.816, 5.818, and 5.820 to read as follows:
The following definitions apply to this subpart:
(i) Established by the Government Accounting Standards Board or Generally Accepted Accounting Principles (GAAP), as applicable;
(ii) Established by the Office of Management and Budget (OMB);
(iii) Established by HUD; or
(iv) Applicable to audit reports for particular covered entities or covered by the quality control system of a particular IPA listed on the IPA Roster.
(2)
(i) The American Institute of Certified Public Accountants (Generally Accepted Auditing Standards (GAAS));
(ii) The Government Accountability Office (Generally Accepted Government Auditing Standards (GAGAS));
(iii) The Office of Management and Budget (OMB Circular A-133); or
(iv) HUD.
(a)
(b)
An IPA listed on the IPA Roster is responsible for:
(a) Complying with any agreements with HUD, including, but not limited to, agreements identified at § 5.810(a);
(b) Maintaining any other eligibility requirements and compliance for each state or jurisdiction in which the IPA is listed;
(c) Notifying HUD within 30 days of any change in the continued compliance of the IPA with eligibility requirements; and
(d) Not making, or causing to be made, any false certifications to HUD.
(a) Any IPA that seeks to perform audits or related services in a particular jurisdiction for covered entities must be listed on the IPA Roster for that state or jurisdiction.
(b) When the IPA wishes to perform audits or related services for covered entities with offices in numerous jurisdictions, the IPA need only be listed in the jurisdiction in which the covered entity maintains its headquarters.
(c) Every IPA that is engaged to perform audits or related services, or who contracts with an IPA to perform any portion of audits or related services, must be listed on the IPA Roster individually or be an employee or member of an auditing firm listed on the IPA Roster.
To be eligible for placement on the IPA Roster:
(a) Public accounting firms and State Auditor's Offices must:
(1) Be licensed or authorized to practice in each of the specific jurisdiction(s) for which the IPA is to be listed;
(2) Not be, or employ or contract with anyone for the performance of audits or related services who is: suspended, debarred, voluntarily excluded, subject to a limited denial of participation, or subject to any order of disbarment or other denial of right to practice before the Securities and Exchange Commission, or subject to a jurisdiction's disciplinary action that has resulted in the revocation, suspension, or surrender of a license or authorization to practice public accounting;
(3) Agree upon approval for placement on the IPA Roster, to comply with the following to maintain placement on the IPA Roster:
(i) Accept only those engagements for audits or related services that meet the minimum qualifications specified by the Generally Accepted Government Auditing Standards (GAGAS);
(ii) In servicing covered entities, accept only those engagements for audits or related services for covered entities located in jurisdictions in which the IPA is listed on the IPA Roster;
(iii) Establish and implement quality control procedures sufficient to satisfy the quality control standards of GAGAS;
(iv) Comply with the professional standards applicable to any audits or related services performed for covered entities;
(v) Comply with any accountancy laws and rules of each jurisdiction for which the IPA is to be listed;
(vi) Comply with all applicable HUD rules and instructions relating to financial reporting, audits, or related services;
(vii) Submit to and cooperate with reviews by HUD of the IPA's performance of audits or related services for covered entities;
(viii) Notify HUD if the IPA or any member or employee of the firm is, or has been within the previous 5 years, indicted or otherwise charged with or convicted of any offense listed in 24 CFR 24.800(a);
(ix) Notify HUD if the IPA or any member or employee of the firm is, or has been within the previous 5 years, adjudged to be civilly liable for any of the offenses listed in 24 CFR 24.800(a); and
(x) Comply with any requests for information made by HUD.
(b) Individual public accountants that wish to be listed on the IPA Roster must either:
(1) Meet the eligibility requirements specified in § 5.810(a); or
(2) Be a partner or member of a public accounting firm listed on the IPA Roster, or be a full-time employee of such a firm.
(a)
(b)
(1)
(2)
(i) If a denial of the application is issued, the IPA will be notified of the reasons for the denial and will be given 30 days from the date of the denial to request reconsideration and demonstrate that the IPA did meet all eligibility requirements for listing in a particular jurisdiction at the time of the initial application.
(ii) If the IPA demonstrates that it did meet all eligibility requirements for listing in a particular jurisdiction at the time of the initial application, the IPA will be listed on the IPA Roster for that particular jurisdiction.
(iii) If the IPA fails to demonstrate that it met all eligibility requirements, the denial of the application is final and the IPA will be required to submit a new application to be considered for future placement on the IPA Roster.
(a)
(1) An IPA may be voluntarily removed from the IPA Roster by notifying the Department in writing, and specifying from which jurisdiction(s) the IPA wishes to be removed.
(2) An IPA that fails to fulfill its responsibilities as a listed IPA is subject to involuntary removal from the IPA Roster.
(b)
(1) Fails to maintain compliance with eligibility requirements by being debarred, suspended, voluntarily excluded, subject to a limited denial of participation, or subject to any order of disbarment or other denial of right to practice before the Securities and Exchange Commission;
(2) Fails to maintain compliance with eligibility requirements by incurring a jurisdiction's disciplinary action that results in the revocation, suspension, or surrender of a license or authorization to practice; or
(3) Fails to maintain compliance with eligibility requirements by allowing licensing or authorization to practice to expire, not due to jurisdiction disciplinary action in any jurisdiction for which the IPA is listed on the IPA Roster.
(4) Automatic removal of an IPA from the IPA Roster for any jurisdiction will constitute automatic removal from the IPA Rosters for all jurisdictions. However, automatic removal under paragraph (b)(3) of this section for failure to maintain licensing or authorization constitutes removal for only the jurisdictions in which the IPA has allowed its licensing or authorization to practice to lapse, and does not affect the listing of the IPA on the IPA Roster for any other jurisdiction in which the IPA remains eligible.
(c)
(1) Failing to comply with any agreements with HUD, including, but not limited to, agreements identified at § 5.810(a);
(2) Failing to maintain compliance with any other eligibility requirements for listing on the IPA Roster for each jurisdiction in which the IPA is listed;
(3) Failing to notify HUD within 30 days of any change in the continued compliance of the IPA with eligibility requirements; or
(4) Making, or causing to be made, any false certification to HUD.
(d)
(1) HUD will provide the IPA with written notice of the proposed removal from the IPA Roster. The notice of proposed removal will include the reasons for the proposed removal of the IPA from the IPA Roster.
(2) The IPA has 30 calendar days from the date of the notice of proposed removal to submit a written response objecting to the proposed removal and/or requesting a conference. If an IPA submits a timely written objection to the proposed removal, the Deputy Assistant Secretary of the Departmental Real Estate Assessment Center (REAC) or a designee (“Reviewing Official”), will review the proposed removal and the IPA objection, and conduct a conference with the IPA, if requested. When a request for a conference is received, the Reviewing Official will schedule the conference within 30 calendar days of the date the request is received. In no instance will the Reviewing Official be the same individual who made the initial determination to propose removal of the IPA from the IPA Roster.
(3) The Reviewing Official will issue a determination within 30 days of receiving the IPA's written response, or, if a conference is requested, within 30 days of the closing of the conference. The Reviewing Official may extend the time for issuance of a final decision by providing the IPA with notice.
(4) The Reviewing Official may affirm or deny the proposed removal from the IPA Roster, or the Reviewing Official may, in his or her sole discretion, find cause for the removal but order that the removal be held in abeyance pending further action.
(e)
(2) The order of abeyance provides the IPA with the opportunity to demonstrate to the satisfaction of the Reviewing Official that all causes for the removal have been addressed prior to the effective date for removal specified in the order of abeyance.
(3) The Reviewing Official shall consider any relevant evidence submitted by an IPA as of the date specified in the order of abeyance, to determine whether all causes for removal have been addressed. Upon request by the IPA, the Reviewing Official, in his or her discretion, may review such evidence at any time prior to the date specified in the order of abeyance.
(f)
(g)
(i) If the IPA does not submit a written response within 30 calendar days of the date of the notice of proposed removal, the removal becomes effective 30 calendar days after the date of HUD's removal notice.
(ii) If the IPA submits a written response within 30 calendar days of the date of the notice of proposed removal, and the removal decision is affirmed, the effective date of the removal is the date of HUD's notice affirming its initial removal decision.
(2) If the IPA is subject to automatic removal, the removal is effective as of the date the IPA receives notice of the removal.
(3) If the removal is held in abeyance, the order of abeyance will specify the effective date of the removal, which will be effective should the IPA fail to demonstrate to the satisfaction of the Reviewing Official that all causes for the removal have been eliminated by the effective date.
(h)
(a) If an IPA is removed from the IPA Roster, the IPA can no longer be engaged to perform audits or related services for covered entities.
(b) If the IPA is currently engaged to perform audits or related services for covered entities, the IPA is not prohibited from completing those contracts or engagements. However, the IPA may not renew or extend (other than no-cost time extensions) any contract or engagement, unless the Reviewing Official grants an exception. The granting of any such exception lies within the sole discretion of the Reviewing Official and will be granted only when the Reviewing Official determines that an exception is in the interest of HUD.
(c) HUD's action to remove an IPA from the IPA Roster does not affect the ability of covered entities to, in their discretion, terminate an existing contract or engagement as a result of the removal of the IPA from the IPA Roster or the circumstances precipitating the removal of the IPA.
(a) If the IPA demonstrates, to the satisfaction of the Reviewing Official, that all causes for removal have been
(b) If the IPA fails to demonstrate elimination of all causes for removal, to the satisfaction of the Reviewing Official, before the effective date, the IPA will be removed from the IPA Roster as of the effective date.
(a)
(1) The request for reinstatement must contain all the information and comply with all the requirements for initial application for placement on the IPA Roster.
(2) The IPA must submit a written explanation of the circumstances surrounding the removal from the IPA Roster.
(3) The IPA must submit documentation demonstrating that all causes resulting in the removal from the IPA Roster have been eliminated.
(b)