Food and Nutrition Service
Forest Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
National Park Service
Employment and Training Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
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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U.S. Office of Personnel Management.
Final rule.
The Office of Personnel Management (OPM) is adopting as a final rule an interim rule that implemented a change to the definition of “active duty” for veterans' preference entitlement contained in § 211.102(f) of title 5, Code of Federal Regulations.
Final rule effective October 29, 2008.
Scott A. Wilander, Ed.D., by telephone at (202) 606–0960; by fax at (202) 606–0390; TTY at (202) 606–3134; or by e-mail at
On July 27, 2007, OPM issued an interim rule with request for comments at 72 FR 41215, to amend its regulations regarding veterans' preference. This rule expanded the definition of “active duty” contained in 211.102(f) of title 5, Code of Federal Regulations, for a “disabled veteran” as defined by 5 U.S.C. 2108(2), to include active duty for training.
OPM received two written comments pertinent to the interim changes. A discussion of these comments is provided below.
One individual asked OPM to consider changing the definition of “active duty” to include active duty for training for a “veteran,” defined by 5 U.S.C. 2108(1)(A), who “served on active duty in the armed forces during a war, in a campaign or expedition for which a campaign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955.” The commenter noted that such a change was necessary because both 5 U.S.C. 2108(2) and 2108(1)(A) use the term “active duty” without modification. We agree and have revised the regulation accordingly.
Another commenter noted that some individuals who are eligible under these provisions may not have received the documentation (e.g., DD–214) required to claim veterans' preference due to the relatively short duration of their service. We understand it may be difficult for these individuals to claim veterans' preference without a DD–214 but we note that OPM provides guidance (e.g., the Delegated Examining Operations Handbook) to agencies for accepting alternatives to the DD–214. We will consider adding similar guidance in VetGuide and VetsInfo Guide to better help job-seeking veterans.
OPM received one written comment from an individual that went beyond the scope of the amendments contained in the interim rule. Because this comment was not pertinent to the interim amendments, OPM is not responding to it. The commenter asked OPM to require agencies, by regulation, to notify job-seeking veterans of the status of their job applications and whether their veterans' preference was considered in the selection process.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
I certify that this regulation would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because it affects only Federal employees.
The information collection requirements contained in this final rule are currently approved by OMB under 3206–AL33. This final regulation does not modify this approved collection.
Government employees, Veterans.
5 U.S.C. 1302.
(f)
(2) Active duty or active military duty for a veteran defined in paragraph (a)(4) through (6) of this section means full-time duty with military pay and allowances in the armed forces, except for training or for determining physical fitness and except for service in the Reserves or National Guard.
Federal Deposit Insurance Corporation (FDIC).
Interim rule with request for comments.
The FDIC is issuing this Interim Rule following a determination of systemic risk pursuant to section 13(c)(4)(G) of the Federal Deposit Insurance Act. As a result of this
The Interim Rule becomes effective on October 23, 2008, except for paragraphs (h)(2) and (h)(3) of § 370.5 which will become effective December 1, 2008. Coverage under the Temporary Liquidity Guarantee Program was established by the Board of Directors of the FDIC as of October 14, 2008. Comments on the rule must be received by November 13, 2008.
You may submit comments on the Interim Rule, by any of the following methods:
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Diane Ellis, Associate Director, Financial Risk Management, Division of Insurance and Research, (202) 898–8978 or
In light of the unprecedented disruption in the nation's credit markets, the Congress, the Department of the Treasury, and the Federal Deposit Insurance Corporation (FDIC), along with other federal banking regulators, have taken steps to preserve the nation's confidence in its financial institutions and in the American and global economy. Congress recently passed the Emergency Economic Stabilization Act of 2008;
FDIC analysis suggests that a five percent reduction in uninsured deposits would reduce Gross Domestic Product growth by 1.2 percent per year in a normal economy and 2.0 percent per year in a stressed economy. With U.S. economic growth currently stressed, a run of this magnitude could result in, or deepen and prolong, recession. FDIC data indicate rapid and substantial outflows of uninsured deposits from institutions that are perceived to be stressed. The systemic nature of this threat is further evidenced by the increasing number of bank failures.
The severity of today's financial conditions affects more than just a single insured depository institution: the financial stability of a significant number of financial institutions is being threatened, and the nation's entire financial system appears to be at risk.
Section 141 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA)
The Secretary of the Treasury (after consultation with the President) made a determination of systemic risk following receipt of the written recommendation of the Board on October 13, 2008, along with the written recommendation of the FRB, in accordance with section 13(c)(4)(G) to the FDI Act. 12 U.S.C. 1823(c)(4)(G). The determination of systemic risk allowed the FDIC to take certain actions to avoid or mitigate serious adverse effects on economic conditions and financial stability. The FDIC announced a number of initiatives aimed at reducing the systemic risks that exist in the market, specifically relating to noninterest-bearing transaction accounts at insured depository institutions and senior unsecured debt of insured depository institutions and most U.S. holding companies of such insured depository institutions. Collectively these initiatives are described more fully in the Interim Rule that follows, and are referred to as the FDIC's Temporary Liquidity Guarantee Program (TLG Program).
In making its written recommendation regarding systemic risk and providing for the TLG Program, the Board reviewed a number of factors concerning current economic conditions and the nation's troubled financial
In addition to the authority granted to the FDIC by the systemic risk determination made under Section 13(c)(4) of the FDI Act, 12 U.S.C. 1823(c)(4), as described above, the FDIC is authorized under Section 9(a) Tenth of the FDI Act, 12 U.S.C. 1819(a)Tenth, to prescribe, by its Board of Directors, such rules and regulations as it may deem necessary to carry out the provisions of the FDI Act. The Board has determined that this Interim Rule is necessary to implement the TLG Program. Similarly the FDIC has authority to adopt regulations governing the operations of its receiverships pursuant to Section 11(d)(1) of the FDI Act, 12 U.S.C. 1821(d)(1) and the broad authority granted by 12 U.S.C. 1823(c)(1).
The TLG Program described in the Interim Rule will address the systemic risk recognized by the FDIC and the other agencies. The TLG Program is designed to preserve confidence and encourage liquidity in the banking system in order to ease lending to creditworthy businesses and consumers. The TLG Program is a voluntary and time-limited program that will be funded through special fees without reliance on taxpayer funding. Subject to the conditions set forth in the regulation, the program consists of two basic components: A temporary guarantee of newly-issued senior unsecured debt (the Debt Guarantee Program) and a temporary unlimited guarantee of funds in noninterest-bearing transaction accounts at FDIC-insured institutions (the Transaction Account Guarantee Program). At the expiration of the TLG Program, if funds remain after the FDIC has satisfied all eligible claims, the surplus funds will remain in the Deposit Insurance Fund and will be included in the future calculation of the reserve ratio.
The following entities are eligible to participate in the program subject to any restrictions that might be imposed by the FDIC in consultation with the primary regulator: FDIC-insured depository institutions, any U.S. bank holding company or financial holding company, and any U.S. savings and loan holding company that either engages only in activities that are permissible for financial holding companies to conduct under section (4)(k) of the Bank Holding Company Act of 1956 (BHCA) or has at least one insured depository institution subsidiary that is the subject of an application that was pending on October 13, 2008, pursuant to section 4(c)(8) of the BHCA, or any affiliate of these entities approved by the FDIC after a written request made by, and the positive recommendation of, the appropriate Federal banking agency. (eligible entities). To be an eligible entity and issue guaranteed debt pursuant to the Debt Guarantee Program, a bank or savings and loan holding company must have at least one chartered, insured, and operating bank or savings association within its holding company structure.
The TLG Program became effective on October 14, 2008. For the first 30 days of the program, all eligible entities are covered under the TLG Program, and the guarantees provided by the TLG Program will be offered at no cost to eligible entities. On or before November 12, 2008, however, eligible entities must inform the FDIC whether they will opt-out of the TLG Program, and they may notify the FDIC on or before that date of their intent to participate in the program. If an eligible entity opts out of the TLG Program, the FDIC's guarantee of its newly-issued senior unsecured debt and noninterest-bearing transaction deposit accounts will expire at the earlier of 11:59 pm EST on November, 12, 2008, or at the time of the FDIC's receipt of the eligible entity's opt-out decision, regardless of the term of the instrument. An eligible entity that chooses not to opt out of either or both programs will become a participating entity in the program.
An eligible entity may elect to opt out of either the Debt Guarantee Program or the Transaction Account Guarantee Program or of both components of the TLG Program. All eligible entities within a U.S. Banking Holding Company or a U.S. Savings and Loan Holding Company structure must make the same decision regarding continued participation in each component of the TLG Program or none of the members of the holding company structure will be eligible for participation in that component of the TLG Program.
In order to notify depositors and lenders when they are dealing with an institution that is covered by the TLG Program, an eligible entity's decision to opt out of either component of the TLG Program will be made publicly available. The FDIC will maintain and will post on its Web site a list of those entities that have opted out of either or both components of the TLG Program. Each eligible entity must make clear to relevant parties whether or not it has chosen to participate in either or both components of the TLG Program. Eligible entities that do not opt out of the Debt Guarantee Program on or before November 12, 2008, will be unable to select which newly issued senior unsecured debt is guaranteed debt as they issue such debt. All senior unsecured debt issued during the initial 30-day period by the participating entity will become guaranteed debt as and when issued.
If an eligible entity remains in the Debt Guarantee Program of the TLG Program, it must clearly disclose to interested lenders and creditors, in writing and in a commercially reasonable manner, what debt it is offering and whether the debt is guaranteed under this program. Debt guaranteed by the FDIC under the Debt Guarantee Program, must be clearly identified as “guaranteed by the FDIC” and properly disclosed to creditors.
If an eligible entity remains in the Transaction Account Guarantee Program, the participating entity must prominently disclose in writing at its main office and at all branches at which deposits are taken its decision to participate in or opt-out of the Transaction Account Guarantee Program. These disclosures must be provided in simple, readily understandable text indicating the institution's participation or nonparticipation in the Transaction Account Guarantee Program. The disclosure must clearly state whether or not covered noninterest-bearing transaction accounts are fully insured by the FDIC. If the institution uses sweep arrangements or takes other actions that result in funds in a noninterest-bearing transaction account being transferred to or reclassified as an interest-bearing account or a non-transaction account, the institution also must disclose those actions to the affected customers and clearly advise them in writing that such actions will void the transaction account guarantee.
The Debt Guarantee Program temporarily will guarantee all newly-issued senior unsecured debt up to prescribed limits that is issued by participating entities on or after October 14, 2008, through and including June 30, 2009. As a result, the unpaid balance
The primary purpose of the Debt Guarantee Program is to provide liquidity to the inter-bank lending market and promote stability in the unsecured funding market for banks. The purpose is not to encourage innovative, exotic or complex funding structures or to protect lenders who make high-risk loans in hopes of high returns. Thus, for purposes of the Debt Guarantee Program, senior unsecured debt excludes, for example, obligations from guarantees or other contingent liabilities, derivatives, derivative-linked products, debt paired with any other security, convertible debt, capital notes, the unsecured portion of otherwise secured debt, negotiable certificates of deposit, and deposits in foreign currency and Eurodollar deposits that represent funds swept from individual, partnership or corporate accounts held at insured depository institutions. Also excluded are loans to affiliates, including parents and subsidiaries, or to institution affiliated parties, including controlling shareholders, directors, and officers.
Eligible debt must be issued on or before June 30, 2009. For eligible debt issued by that date, the FDIC will provide the guarantee coverage for such debt until the earlier of the maturity date of the debt or until June 30, 2012. This final effective date for coverage is absolute; coverage will expire at 11:59 p.m. EST on June 30, 2012, regardless of whether the liability has matured at that time. If an eligible entity chooses to opt out of the Debt Guarantee Program, the FDIC's debt guarantee will terminate on the earlier of 11:59 p.m. EST p.m. on November 12, 2008, or at the time of the eligible entity's opt-out decision. In order for the newly-issued senior unsecured debt to be guaranteed, the debt instrument must be clearly identified in writing in a commercially reasonable manner on the face of any documentation as “guaranteed by the FDIC,” and this fact must be properly disclosed to the creditors. The Debt Guarantee Program will not apply to debt that is contractually subordinated to other debt of the entity.
The FDIC will temporarily guarantee newly issued unsubordinated debt in a total amount up to 125 percent of the par or face value of senior unsecured debt outstanding, excluding debt extended to affiliates, as of September 30, 2008, that is scheduled to mature on or before June 30, 2009. This maximum guaranteed amount will be calculated for each individual participating entity within a holding company structure. Under procedures to be detailed shortly, the FDIC will require that each participating entity calculate its outstanding senior unsecured debt as of September 30, 2008, and provide that information—even if the amount of the senior unsecured debt is zero—to the FDIC.
The 125 percent limit may be adjusted for certain participating entities if the FDIC, in consultation with any appropriate Federal banking agency, determines it is necessary. Additionally, after written request and positive recommendation by the appropriate Federal banking agency, the FDIC, in its sole discretion and on a case-by-case basis, may allow an affiliate of a participating entity to take part in the Debt Guarantee Program. The FDIC may grant a participating entity authority to temporarily exceed the 125 percent limitation or limit a participating entity to less than 125 percent. These decisions will be made on a case-by-case basis.
A participating entity may not represent that its debt is guaranteed by the FDIC if it does not comply with the rules governing the Debt Guarantee Program. If the issuing entity has opted out of the Debt Guarantee Program, it may no longer represent that its newly-issued debt is guaranteed by the FDIC. Similarly, once an entity has reached its 125 percent limit, it may not represent that any additional debt is guaranteed by the FDIC, and must specifically disclose that such debt is not guaranteed.
After consultation with a participating entity's appropriate Federal banking agency, the FDIC may determine in its discretion that the entity shall not be permitted to participate in the TLG Program. Termination of participation will have only a prospective effect, and the entity must notify its customers and creditors that it is no longer issuing guaranteed debt.
Entities who choose to participate in the Debt Guarantee Program and who issue guaranteed debt agree to supply information requested by the FDIC, as well as to be subject to FDIC on-site reviews as needed after consultation with the appropriate Federal banking agency to determine compliance with the terms and requirements of the Debt Guarantee Program. Participating entities also agree that they will be bound by the FDIC's decisions, in consultation with the appropriate federal banking agency, regarding the management of the TLG Program.
The FDIC's agreement arising from the Debt Guarantee Program in no way exempts any participating entity from complying with federal and state securities laws and with any other applicable laws.
Under the Transaction Account Guarantee Program, the FDIC has provided a temporary full guarantee for funds held at FDIC-insured depository institutions in noninterest-bearing transaction accounts above the existing deposit insurance limit. The FDIC anticipates that these accounts will include payment-processing accounts, such as payroll accounts, frequently used by an insured depository institution's business customers, and further anticipates that the Transaction Account Guarantee Program will stabilize these and other similar accounts. This coverage became effective on October 14, 2008, and will continue through December 31, 2009 (assuming that the insured depository institution does not opt out of this component of the TLG Program).
Under the Interim Rule, a “noninterest-bearing transaction account” is defined as a transaction account with respect to which interest is neither accrued nor paid and on which the insured depository institution does not reserve the right to require advance notice of an intended withdrawal. This definition encompasses traditional demand deposit checking accounts that allow for an unlimited number of deposits and withdrawals at any time. It also encompasses official checks issued by an insured depository institution. This definition, however, does not encompass negotiable order of
Depository institutions sometimes waive fees or provide fee-reducing credits for customers with checking accounts. Such account features do not prevent an account from qualifying under the Transaction Account Guarantee Program as a noninterest-bearing transaction account, as long as the account otherwise satisfies the definition.
The guarantee provided for noninterest-bearing transaction accounts is in addition to and separate from the coverage provided under the FDIC's general deposit insurance regulations at 12 CFR Part 330. Although the unlimited coverage for noninterest-bearing transaction accounts under the TLG Program is intended primarily to apply to transaction accounts held by businesses, it applies to all such accounts held by any depositor. Thus, for example, if a consumer has a $250,000 certificate of deposit and a noninterest-bearing checking account for $50,000, he or she would be fully insured for $300,000 (assuming the depositor has no other funds at the same institution). First, coverage of $250,000 would be provided for the certificate of deposit under the FDIC's general rules for deposit insurance coverage.
The Interim Rule includes a provision relating to sweep accounts. Under this provision, the FDIC will treat funds in sweep accounts in accordance with the usual rules and procedures for determining sweep balances at a failed depository institution. Under these procedures, funds may be swept or transferred from a noninterest-bearing transaction account to another type of deposit or nondeposit account. The FDIC will treat the funds as being in the account to which the funds were transferred. An exception will exist, however, for funds swept from a noninterest-bearing transaction account to a noninterest-bearing savings account. Such swept funds will be treated as being in a noninterest-bearing transaction account. As a result of this treatment funds swept into a noninterest-bearing savings account will be guaranteed by the Transaction Account Guarantee Program.
Beginning on November 13, 2008, any eligible entity that has not chosen to opt out of the debt guarantee program will be assessed fees for continued coverage. All eligible debt issued from October 14, 2008 (and still outstanding on November 13, 2008), through June 30, 2009, will be charged an annualized fee equal to 75 basis points multiplied by the amount of debt issued, and calculated for the maturity period of that debt or June 30, 2012, whichever is earlier. The fee charged will take into account that no fees will be charged during the first 30 days of the program. If any participating entity issues eligible debt guaranteed by the Debt Guarantee Program, the participating entity's assessment will be based on the total amount of debt issued and the maturity date at issuance. If the guaranteed debt is ultimately retired before its scheduled maturity, fees will not be refunded.
If an eligible entity does not opt out, all newly-issued senior unsecured debt up to the maximum amount will become guaranteed as and when issued. Participating entities are prohibited from issuing guaranteed debt in excess of the maximum amount for the institution. Participating entities are also prohibited from issuing non-guaranteed debt until the maximum allowable amount of guaranteed debt has been issued. A participating entity can then issue non-guaranteed debt in any amount and for any maturity. If a participating entity nonetheless issues debt identified as “guaranteed by the FDIC” in excess of the limit established by the FDIC, it will have its assessment rate for guaranteed debt increased to 150 basis points on all outstanding guaranteed debt, and the participating entity and its institution-affiliated parties will be subject to enforcement actions including the assessment of civil money penalties, as appropriate.
Participating entities can take part in the guaranteed debt program as outlined above without any further action on their part. If a participating entity wants to have the option of issuing certain non-guaranteed senior unsecured debt before issuing the maximum amount of guaranteed debt, it must elect to do so through FDIC
Under the Transaction Account Guarantee Program, the FDIC provides a full guarantee for deposits held at FDIC-insured institutions in noninterest-bearing transaction accounts. This coverage became effective on October 14, 2008, and will expire at 11:59 p.m. EST on December 31, 2009 (assuming the insured depository institution does not opt out of the Transaction Account Guarantee Program). The Interim Rule provides that all insured depository institutions are automatically enrolled in the Transaction Account Guarantee Program for an initial thirty-day period (from October 14, 2008, through November 12, 2008). Insured depository institutions are not required to pay any assessments for participating in the Transaction Account Guarantee Program for this initial 30-day period.
Beginning on November 13, 2008, insured depository institutions that have not opted out of the Transaction Account Guarantee Program will be assessed on a quarterly basis an annualized 10 basis point assessment on balances in noninterest-bearing transaction accounts that exceed the existing deposit insurance limit of $250,000. Under the Interim Rule, the FDIC will collect such assessments at the same time and in the same manner as it collects an institution's quarterly deposit insurance assessments under Part 327 of the FDIC's rules and regulations. Assessments associated with the Transaction Account Guarantee Program will be in addition to an institution's risk-based assessment imposed under Part 327 of the FDIC's rules and regulations.
The Interim Rule requires the FDIC to impose an emergency systemic risk assessment on insured depository institutions if the fees and assessments
The Interim Rule sets forth the process for payment and recovery of FDIC guarantees of “noninterest-bearing transaction accounts,” as that term is defined in the Interim Rule. Under the rule, the FDIC's obligation to make payment, in its capacity as guarantor of deposits held in noninterest-bearing transaction accounts, arises upon the failure of a participating federally insured depository institution. The payment and claims process for satisfying claims under the Transaction Account Guarantee Program generally will follow the procedures prescribed for deposit insurance claims pursuant to section 11(f) of the FDI Act (12 U.S.C. 1821(f)), and the FDIC will be subrogated to the rights of depositors against the institution pursuant to section 11(g) of the FDI Act (12 U.S.C. 1821(g)).
The FDIC will make payment to the depositor for the guaranteed amount under the Transaction Account Guarantee Program or will make such guaranteed amount available in an account at another insured depository institution at the same time it fulfills its deposit insurance obligation under Part 330. The payment made pursuant to the Transaction Account Guarantee Program will be made as soon as possible after the FDIC, in its sole discretion, determines whether the deposit is eligible and what amount is ultimately guaranteed. In most cases, the FDIC will make the entire amount of a qualifying transaction account available to the depositor on the next business day following the failure of an institution that participates in the Transaction Account Guarantee Program. If there is no acquiring institution for a transaction account guaranteed by the Transaction Account Guarantee Program, the FDIC will mail a check to the depositor for the full amount of the guaranteed account within days of the insured depository institution's failure.
As a result of assuming the receiver's responsibility for making payment on the transaction account, the FDIC will be subrogated to all rights of the depositor against the institution with respect to noninterest-bearing transaction accounts guaranteed by the Transaction Account Guarantee Program. This subrogation right includes the right of the FDIC to receive dividends from the proceeds of the receivership estate of the institution. As is currently the case, the FDIC as manager of the Deposit Insurance Fund, will be entitled to receive dividends in the deposit class for that portion of the account. (See 12 U.S.C. 1821(d)(11)(A)(ii)). Similarly, the FDIC would be entitled to receive dividends from the receiver for assuming its obligation with regard to the uninsured portion of the guaranteed transactional deposit accounts.
As it does in satisfying claims for insured deposits, the FDIC will rely on the books and records of the insured depository institution to establish ownership and coverage for payment of deposits subject to the Transaction Account Guarantee Program. In making its determination about what amounts are guaranteed, the FDIC will be entitled to the same discretion it has under section 11(f)(2) of the FDI Act (12 U.S.C. 1821(f)(2)), in requiring the depositor to file a proof of claim (POC). The FDIC does not anticipate that a POC will be required during the normal course of guarantee determination and payment pursuant to the Transaction Account Guarantee Program, but situations requiring a POC to be filed may arise. The FDIC's determination of the guaranteed amount will be final and will be considered a final administrative determination subject to judicial review in accordance with Chapter 7 of Title 5, similar to that provided for in sections 11(f)(4) and (5) of the FDI Act (12 U.S.C. 1821(f)(4) and (5)), regarding judicial review of insured deposit claims. A noninterest-bearing transaction account depositor may seek judicial review of the FDIC's determination on payment of the guaranteed amount in the United States district court for the federal judicial district where the principal place of business of the depository institution is located within 60 days of the date on which the FDIC's final determination is issued.
Pursuant to the Debt Guarantee Program the FDIC will guarantee senior unsecured debt, as that term is defined, for institutions that have chosen to participate in the Debt Guarantee Program. The FDIC's obligation to make payment, in its capacity as guarantor of senior unsecured debt issued by participating insured depository institutions, arises upon the failure of a participating insured depository institution. The FDIC will use the well-established receivership claims process to process guarantee requests. The FDIC will not consider any evidence provided by the debt holder that is not presented to the FDIC within 90 days of the publication of the claims notice by the receiver for the failed institution. The FDIC anticipates that many debt holders, particularly sellers of federal funds, will be paid on the next business day immediately following the failure of an insured depository institution. In all instances, the FDIC commits to pay claims related to its debt guarantee expeditiously and will strive to make payment on the next business day after the claim is determined to be valid. .
The FDIC will be subrogated to the rights of any creditor it pays under the program.
With respect to senior unsecured debt of holding companies eligible for payment based on the Debt Guarantee Program, when the holding company files for bankruptcy protection, the FDIC will make payment to the debt holder for the principal amount of the debt and interest to the date of the filing of a bankruptcy petition by the issuing institution. As with claims for debt issued by insured depository institutions, the FDIC will strive to expedite the claims payment process, but the FDIC generally will not make payment on the guaranteed amount for a debt asserted against a bankruptcy estate, unless and until the claim for the unsecured senior debt has been determined to be an allowed claim against the bankruptcy estate and such claim in not subject to reconsideration under 11 U.S.C. 502(j). If the FDIC does not pay eligible guaranteed debt within one business day of the filing of a bankruptcy petition with respect to a participating bank or savings and loan holding company, the FDIC will pay interest until payment is made on the eligible debt at the 90-day T-bill rate in effect when the bankruptcy petition was filed.
To properly establish ownership and coverage under this aspect of the TLG Program, the FDIC normally will require the holder to file a POC within 90 days of the published bar date of the bankruptcy proceeding. The FDIC may also consider the books and records of the holding company and its affiliates to determine the holder of the unsecured senior debt and the amount eligible for payment under the Debt Guarantee Program. The holder of the unsecured
To receive payment under the Debt Guarantee Program, the holder of the unsecured senior debt shall be required to assign its rights, title and interest in the unsecured senior debt to the FDIC and to transfer its validated claim in bankruptcy to the FDIC. This assignment shall include the right of the FDIC to receive principal and interest payments on the unsecured senior debt from the proceeds of the bankruptcy estate of the holding company. If the holder of the unsecured senior debt receives any distribution from the bankruptcy estate prior to the FDIC's payment under the guarantee, the guaranteed amount paid by the FDIC shall be reduced by the amount the holder has received in the distribution from the bankruptcy estate. In the case of a bankruptcy estate, the FDIC as assignee of the unsecured senior debt shall be entitled to receive distributions from the liquidation or other resolution of the bankruptcy estate in accordance with 11 U.S.C. 726 or a confirmed plan of reorganization or liquidation in accordance with 11 U.S.C. 1129. The POC must be filed with the FDIC within 90 days of the published bar date of the bankruptcy proceeding.
The FDIC invites comments on all aspects of the Temporary Liquidity Guarantee Program as described in the Interim Rule and suggestions for its implementation.
In particular, the FDIC specifically requests suggestions on ways in which the claims process for the Debt Guarantee Program may be modified to speed payment to eligible claimants without putting at risk the funds administered by the FDIC.
Negotiable order of withdrawal (NOW) accounts are excepted from the definition of definition of “noninterest-bearing transaction account” in the Interim Rule. Should the definition be modified and the FDIC's transaction guarantee be extended to include coverage for NOW accounts held by sole proprietorships, non-profit religious, philanthropic, charitable organizations and the like, or governmental units for the deposit of public funds if the interest paid is de minimis?
The Interim Rule provides for a number of disclosures relative to the FDIC's Debt Guarantee Program. Does the certainty of payment provided by the required disclosures to lenders and creditors outweigh the burden on participating entities in providing the disclosures? Are there alternative, less burdensome ways to achieve the same result and foster creditor confidence in the Debt Guarantee Program?
Pursuant to section 553(b)(B) of the Administrative Procedure Act (APA), notice and comment are not required prior to the issuance of a final rule if an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. In addition, section 553(d)(3) of the APA provides that an agency, for good cause found and published with the rule, does not have to comply with the requirements that a final rule be published not less than 30 days before its effective date. The FDIC finds good cause to adopt this Interim Rule without prior notice and comment and without the 30-day delayed effective date.
The FDIC's finding is based upon the severe financial conditions that threaten the stability of the nation's economy generally and the banking system in particular, the serious adverse effects on economic conditions and financial stability that would result from any delay of the effective date of the Interim Rule, and the fact that the Temporary Liquidity Guarantee Program became effective on October 14, 2008. Nevertheless, the FDIC desires to have the benefit of public comment before adopting a permanent final rule and thus invites interested parties to submit comments during a 15-day comment period. The 15-day comment period will allow the FDIC to receive comments in a timely manner and provide the industry with a final rule as quickly as possible, given the Interim Rule's October 23, 2008, effective date. In adopting the final regulation, the FDIC will revise the Interim Rule, if appropriate, in light of the comments received on the Interim Rule.
The Riegle Community Development and Regulatory Improvement Act requires that any new rule prescribed by a Federal banking agency that imposes additional reporting, disclosures, or other new requirements on insured depository institutions take effect on the first day of a calendar quarter unless the agency determines, for good cause published with the rule, that the rule should become effective before such time.
The Office of Management and Budget has determined that the Interim Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA), 5 U.S.C. 801
The Regulatory Flexibility Act (RFA) requires an agency that is issuing a proposed rule to prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. Because this rulemaking does not involve the issuance of a notice of proposed rulemaking, the requirements of the RFA do not apply.
This interim rule contains information collection requirements subject to the Paperwork Reduction Act (PRA). The FDIC has submitted a request for review and approval of a collection of information under the emergency processing procedures in Office of Management and Budget (OMB) regulation, 5 CFR 1320.13. The FDIC is requesting approval by October 23, 2008, of reporting requirements on amounts of senior unsecured debt, decisions to opt in or opt out of the TLG Program or either of its components, issuance of guaranteed debt and debt holder guarantee claims against a receivership; disclosure requirements regarding participation in the debt guarantee component, participation in the transaction account guarantee component, and termination of participation in the TLG Program.
These reporting and disclosure requirements are needed immediately to facilitate the FDIC's administration of
The proposed burden estimate is as follows:
Initial report of amount of senior unsecured debt—once.
Subsequent reports on amount of senior unsecured debt—4.
Opt-out/opt-in notice—once.
Notice of debt guarantee—once.
Notice of transaction account guarantee—once.
Notice of issuance of debt guarantee—26 to 250.
Notice of termination of participation—once.
Debt-holder guarantee claims—once.
Bankruptcy POC/evidence of POC—once.
Initial report of amount of senior unsecured debt—14,400.
Subsequent reports on amount of senior unsecured debt—14,400.
Opt-out/opt-in notice—1,600.
Notice of debt guarantee—9,150.
Notice of transaction account guarantee—8,000.
Notice of issuance of debt guarantee—13,650.
Notice of termination of participation—300.
Debt-holder guarantee claims—2,300.
Bankruptcy POC/evidence of POC—300.
Initial report of amount of senior unsecured debt—1 hour.
Subsequent reports on amount of senior unsecured debt hour—1.
Opt-out/opt-in notice—0.5 hour.
Notice of debt guarantee—1 to 2 hours.
Notice of transaction account guarantee—2 hours.
Notice of issuance of debt guarantee—0.5 to 3 hours.
Notice of termination of participation—3 hours.
Debt-holder guarantee claims—3 hours.
Bankruptcy POC/evidence of POC—1 hour.
Initial report of amount of senior unsecured debt—14,400 hours.
Subsequent reports on amount of senior unsecured debt—57,600 hours.
Opt-out/opt-in notice—800 hours.
Notice of debt guarantee—15,300 hours.
Notice of transaction account guarantee—16,000 hours.
Notice of issuance of debt guarantee—2,086,900 hours.
Notice of termination of participation—900 hours.
Debt-holder guarantee claims—6,900 hours.
Bankruptcy POC/evidence of POC—300 hours.
Total annual burden—2,199,100 hours.
The FDIC plans to follow this emergency request with a request for standard 3-year approval. Although this program, including most of the burden on participating entities, will be largely ended by the end of 2009, a few elements will be ongoing until 2012. The request will be processed under OMB's normal clearance procedures in accordance with the provisions of OMB regulation 5 CFR 1320.10. To facilitate processing of the emergency and normal clearance submissions to OMB, the FDIC invites the general public to comment on: (1) Whether this collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (2) the accuracy of the estimates of the burden of the information collection, including the validity of the methodologies and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and (5) estimates of capital or start up costs, and costs of operation, maintenance and purchase of services to provide the information.
Banks, Banking, Bank deposit insurance, Holding companies, National banks, Reporting and recordkeeping requirements, Savings associations.
12 U.S.C. 1813(l), 1813(m), 1817(i), 1818, 1819(a)(Tenth); 1820(f), 1821(a); 1821(c); 1821(d); 1823(c)(4).
As used in this part, the terms listed in this section are defined as indicated below. Other terms used in this part that are defined in the Federal Deposit Insurance Act (FDI Act) have the meanings given them in the FDI Act except as otherwise provided herein.
(a)
(1) An insured depository institution;
(2) A U.S. bank holding company, provided that it has at least one chartered and operating insured depository institution within its holding company structure;
(3) A U.S. savings and loan holding company, provided that it has at least one chartered and operating insured depository institution within its holding company structure or
(4) Other affiliates of insured depository institutions that the FDIC after consultation with the appropriate Federal banking agency, designates as eligible entities which affiliates, by seeking and obtaining such designation, will have opted in to the debt guarantee program.
(b)
(c)
(d)
(1) Engages only in activities that are permissible for financial holding companies under section 4(k) of the BHCA, 12 U.S.C.1843(k), or
(2) Has at least one insured depository institution subsidiary that is the subject of an application under section 4(c)(8) of the BHCA, 12 U.S.C. 1843(c)(8), that was pending on October 13, 2008.
(e)
(1) Senior unsecured debt includes, for example, federal funds purchased, promissory notes, commercial paper, unsubordinated unsecured notes, certificates of deposit standing to the credit of a bank, bank deposits in an international banking facility (IBF) of an insured depository institution, and Eurodollar deposits standing to the credit of a bank. For purposes of this paragraph, the term “bank” means an insured depository institution or a depository institution regulated by a foreign bank supervisory agency.
(2) Senior unsecured debt may be denominated in foreign currency.
(3) Senior unsecured debt excludes, for example, obligations from guarantees or other contingent liabilities, derivatives, derivative-linked products, debt paired with any other security, convertible debt, capital notes, the unsecured portion of otherwise secured debt, negotiable certificates of deposit, and deposits in foreign currency and Eurodollar deposits that represent funds swept from individual, partnership or corporate accounts held at insured depository institutions. Also excluded are loans to affiliates, including parents and subsidiaries, and institution affiliated parties.
(f)
(1) The earlier of November 12, 2008 or the date an eligible entity opts out, for an eligible entity that opts out of the debt guarantee program; or
(2) June 30, 2009, for an eligible entity that does not opt out of the debt guarantee program.
(g)
(1) For the period from October 14, 2008, through November 12, 2008, any eligible entity that has not opted out; or
(2) For the period from November 13, 2008 through June 30, 2012, an eligible entity that has not opted out of the debt guarantee program; or
(3) For the period from November 13, 2008 through December 31, 2009, an eligible entity that has not opted out of the transaction account guarantee program.
(h)
(i) Maintained at an insured depository institution;
(ii) With respect to which interest is neither accrued nor paid; and
(iii) On which the insured depository institution does not reserve the right to require advance notice of an intended withdrawal.
(2) A noninterest-bearing transaction account does not include, for example, a negotiable order of withdrawal (NOW) account or money market deposit account (MMDA) as those accounts are defined in 12 CFR 204.2.
(i)
(j)
(k)
(l)
(a) Upon the failure of a participating entity that is an insured depository institution or the filing of a petition in bankruptcy with respect to any other participating entity, and subject to the other provisions of this part, the FDIC guarantees payment of the unpaid principal and contract interest accrued to the date of failure or bankruptcy, as appropriate, of all FDIC-guaranteed debt issued by the participating entity during the period from October 14, 2008, through June 30, 2009, provided that the FDIC will pay interest at the 90-day T-Bill bill rate if there is a delay in payment beyond the next business day after the failure of the institution or the date of filing of the bankruptcy petition, respectively.
(b) Absent action by the FDIC, the maximum amount of debt to be issued under the guarantee is 125 percent of the par value of the participating entity's senior unsecured debt, excluding debt extended to affiliates or institution affiliated parties, outstanding as of September 30, 2008 that was scheduled to mature on or before June 30, 2009. Under certain circumstances and subject to certain conditions, including disclosure requirements, a participating entity may issue senior unsecured debt that is not subject to the guarantee. If the participating entity issues debt identified as “guaranteed by the FDIC” in excess of its maximum amount, it will become subject to assessment increases as provided in § 370.6(e). The FDIC may make exceptions to this guarantee limit, for example, allow a participating entity to exceed the 125 percent guarantee limit, restrict a participating entity to less than 125 percent, and/or impose other limits or requirements. If a participating entity had no senior unsecured debt on September 30, 2008, the entity may seek to have some amount of debt covered by the debt guarantee program. The FDIC, after consultation with the appropriate Federal banking agency, will decide whether, and to what extent, such requests will be granted on a case-by-case basis.
(1) Each participating entity shall calculate the amount of its senior unsecured debt outstanding as of September 30, 2008 excluding debt extended to affiliates, that was scheduled to mature on or before June 30, 2009, using the definitions described in this regulation.
(2) Each participating entity will report the calculated amount to the FDIC, even if such amount is zero, in an approved format via FDIC
(3) Each subsequent report to the FDIC concerning debt issuances or balances outstanding will state whether the eligible institution has issued guaranteed debt that exceeded its limits at any time since the previous reporting period.
(4) All reports subject to this section will contain a certification from the eligible institution's Chief Financial Officer (CFO) or equivalent certifying the accuracy of the information reported.
(c) For FDIC-guaranteed debt issued on or before June 30, 2009, the FDIC's guarantee will terminate on the earlier of the maturity of the debt or June 30, 2012.
(d) Debt cannot be issued and identified as guaranteed by the FDIC if:
(1) The proceeds are used to prepay debt that is not FDIC-guaranteed;
(2) The issuing entity has previously opted out of the debt guarantee program;
(3) The issuing entity has had its participation in the debt guarantee program terminated by the FDIC;
(4) The issuing entity has exceeded its authorized limit for issuing guaranteed debt as specified in paragraph (b) of this section,
(5) The debt does not otherwise meet the requirements of this part; or
(6) The debt is extended to an affiliate, an insider of the participating entity, or an insider of an affiliate without FDIC approval of the guarantee.
(e) The FDIC's agreement to include a participating entity's senior unsecured debt in the debt guarantee program does not exempt the entity from complying with any applicable law including, without limitation, Securities and Exchange Commission registration or disclosure requirements that would be applicable if the entity or liability were not included in the program.
(f)
(a) In addition to the coverage afforded to depositors under 12 CFR Part 330, a depositor's funds in a noninterest-bearing transaction account maintained at a participating entity that is an insured depository institution are insured in full (irrespective of the standard maximum deposit insurance amount defined in 12 CFR 330.1(n)) from October 14, 2008, through the earlier of:
(1) The date of opt-out, if the entity opted out, or
(2) December 31, 2009.
(b) In determining whether funds are in a noninterest-bearing transaction account for purposes of this section, the FDIC will apply its normal rules and procedures under § 360.8 (12 CFR 360.8) for determining account balances at a failed insured depository institution. Under these procedures, funds may be swept or transferred from a noninterest-bearing transaction account to another type of deposit or nondeposit account. Unless the funds are in a noninterest-bearing transaction account after the completion of a sweep under § 360.8, the funds will not be guaranteed under the transaction account guarantee program.
(c) Notwithstanding paragraph (b) of this section, in the case of funds swept from a noninterest-bearing transaction account to a noninterest-bearing savings deposit account, the FDIC will treat the swept funds as being in a noninterest-bearing transaction account. As a result of this treatment, the funds swept from a noninterest-bearing transaction account to a noninterest-bearing savings account will be guaranteed under the transaction account guarantee program.
(a)
(b) The issuance of FDIC-guaranteed debt subject to the protections of the debt guarantee program is an affirmative action by a participating entity that constitutes its agreement to be:
(1) Bound by the terms and conditions of the program, including without limitation, being subject to the assessments provided herein;
(2) Subject to and to comply with any FDIC request to provide information relevant to participation in the debt guarantee program and to be subject to FDIC on-site reviews as needed after consultation with the appropriate Federal banking agency to determine compliance with the terms and requirements of the debt guarantee program; and
(3) Bound by the FDIC's decisions, in consultation with the appropriate Federal banking agency, regarding the management of the temporary liquidity guarantee program.
(c)
(d) An eligible entity may elect to opt out of either the guaranteed debt program or the transaction account guarantee program or both. The choice to opt out, once made, is irrevocable. Similarly, the choice to affirmatively opt in, as provided in § 370.5(c), once made, is irrevocable.
(e) All eligible entities within a U.S. bank holding company group or U.S. savings and loan holding company group must make the same decision regarding continued participation in each guarantee program; failure to do so constitutes an opt out by all members of the group.
(f) Eligible entities that do not opt out on or before November 12, 2008 will not be able to select which newly issued senior unsecured debt is guaranteed debt; all senior unsecured debt issued by a participating entity up to the guarantee limit will become guaranteed debt as and when issued, subject to § 370.3(f).
(g)
(h)
(1) The FDIC will publish on its Web site:
(i) A list of the eligible entities that have opted out of the debt guarantee program and
(ii) A list of the eligible entities that have opted out of the transaction account guarantee program.
(2) If an eligible entity does not opt out of the debt guarantee program, it must clearly identify, in writing and in a commercially reasonable manner, to any interested lender or creditor whether the newly issued debt it is offering is guaranteed or not.
(3) Each eligible entity that is an insured depository institution must post a prominent notice in the lobby of its main office and each branch clearly indicating whether the entity is participating in the transaction account guarantee program,
(i) These disclosures must be provided in simple, readily understandable text.
(ii) If the institution uses sweep arrangements or takes other actions that result in funds being transferred or reclassified to an interest-bearing account or nontransaction account, the institution must disclose those actions to the affected customers and clearly advise them, in writing, that such actions will void the FDIC's guarantee.
(4)
(i)
(1) Participation by an entity organized after the expiration of the opt-out period will be considered by the FDIC on a case-by-case basis in consultation with the entity's appropriate Federal banking agency.
(2) An eligible entity that is not an insured depository institution will no longer be eligible to participate in the debt guarantee program once it is no longer affiliated with a chartered and operating insured depository institution.
(j)
(2)
(a)
(b)
(1) Any eligible entity that does not opt out of the Debt Guarantee Program by November 12, 2008, as provided in § 370.5, and issued any guaranteed debt during the period from October 14, 2008 through November 12, 2008 that was still outstanding on November 12, 2008, shall notify the FDIC of that issuance via the FDIC's e-business Web site FDIC
(2) Any eligible entity that does not opt out of the program and that issues guaranteed debt after November 12, 2008, shall notify the FDIC of that issuance via the FDIC's e-business Web site FDIC
(3) The eligible entity shall be required to provide certification that the issuance does not exceed the guaranteed amount limit as set forth in § 370.3.
(4) The FDIC will provide procedures governing notice to the FDIC and certification of guaranteed amount limits for purposes of this section.
(c)
(d)
(2)
(3)
(e)
(f)
(1) The nonrefundable fee will be collected in six equal monthly installments.
(2) An entity electing the nonrefundable fee option will also be billed as it issues guaranteed debt under the debt guarantee program, and the amounts paid as a nonrefundable fee will be applied to offset these bills until the nonrefundable fee is exhausted.
(3) Thereafter, the institution will have to pay additional assessments on guaranteed debt as it issues the debt
(g)
(a)
(b)
(c)
(d)
To the extent that the assessments provided under § 370.6 or § 370.7 are insufficient to cover any loss or expenses arising from the temporary liquidity guarantee program, the Corporation shall impose an emergency special assessment on insured depository institutions as provided under 12 U.S.C. 1823(c)(4)(G)(ii) of the FDI Act.
The FDIC will establish procedures, require reports, and require participating entities to provide and preserve any information needed for the operation of this program.
(a)
(b) By issuing guaranteed debt, and not opting out of the temporary liquidity guarantee program, all participating entities agree, for the duration of the temporary liquidity guarantee program, to be subject to the FDIC's authority to determine compliance with the provisions and requirements of the program.
(a)
(1) Termination of participation in the temporary liquidity guarantee program will solely have prospective effects. All previously issued guaranteed debt will continue to be guaranteed as set forth in this part.
(2) The FDIC will work with the participating entity and its appropriate Federal banking agency to assure that the entity notifies its customers and lenders or creditors that its participation in the temporary liquidity guarantee program has ended.
(b)
(a)
(1)
(2)
(3)
(b)
(i)
(ii)
(iii)
(2)
(i)
(ii)
(iii)
(iv)
(v)
By order of the Board of Directors.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is revising an existing airworthiness directive (AD) that applies to certain Bombardier Model CL–600–2C10 (Regional Jet series 700 & 701) series airplanes and Model CL–600–2D24 (Regional Jet series 900) series airplanes. That AD currently requires revising the Airworthiness Limitations section of the Instructions of Continued Airworthiness by incorporating new repetitive inspections and an optional terminating action for the repetitive inspections, and repairing any crack. This new AD clarifies the applicability of the existing AD. This AD results from reports of hydraulic pressure loss in either the number 1 or number 2 hydraulic system due to breakage or leakage of hydraulic lines in the aft equipment bay and reports of cracks on the aft pressure bulkhead web around the feed-through holes. We are issuing this AD to prevent loss of hydraulic pressure, which could result in reduced controllability of the airplane, and to detect and correct cracks on the aft pressure bulkhead web, which could result in reduced structural integrity of the aft pressure bulkhead.
This AD is effective December 3, 2008.
On July 27, 2005 (70 FR 35987, June 22, 2005), the Director of the Federal Register approved the incorporation by reference of Bombardier CRJ 700/900 Series Temporary Revision MRM2–129, dated June 1, 2004.
For service information identified in this AD, contact Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada.
You may examine the AD docket on the Internet at
Pong Lee, Aerospace Engineer, Airframe and Propulsion Branch, ANE–171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410,
The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an airworthiness directive (AD) to revise AD 2005–13–02, amendment 39–14138 (70 FR 35987, June 22, 2005). The existing AD applies to certain Bombardier Model CL–600–2C10 (Regional Jet series 700 & 701) series airplanes and Model CL–600–2D24 (Regional Jet series 900) series airplanes. The proposed AD was published in the
We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.
Comair requests that the NPRM be withdrawn. Comair states that the minor editorial correction to the Applicability section of the NPRM should not warrant a revised or new directive, and that the revised AD will not increase the airworthiness of any airplane. Comair also states that a review of the airplane log will indicate which service bulletins have been incorporated by Bombardier, on a limited basis, before delivery to a customer.
We do not agree with Comair to withdraw the NPRM. When a previously issued AD is changed, we issue a correction, revision, or supersedure AD, depending on the nature of the material being changed. In the case of this AD, a revision AD is the appropriate means to clarify the Applicability section of AD 2005–13–02. We have determined that issuance of this AD is necessary because Bombardier does not incorporate service bulletins in production and operators may misinterpret which affected airplanes are subject to the requirements of this AD.
Comair notes that Bombardier Service Bulletin 670BA–29–008 is currently at Revision B, dated August 28, 2007. Paragraph (c) of the NPRM (i.e., Applicability section) refers to the initial issue, dated March 12, 2004; and Revision A, dated May 5, 2004; of that service bulletin.
From this comment, we infer that Comair is requesting that paragraph (c) of the NPRM be revised to also exclude those airplanes on which Revision B of Bombardier Service Bulletin 670BA–29–008 has been incorporated. We agree and revised paragraph (c) of this AD accordingly.
Comair requests that the serial numbers for Model CL–600–2C10 series airplanes identified in Table 1 of the NPRM be limited to serial numbers 10003 through 10156 inclusive. Comair states that comments were submitted to the NPRM for AD 2005–13–02 to limit the serial number range for which that AD should apply. In the preamble of the final rule for AD 2005–13–02, Comair notes that the FAA agreed with that comment but believes that we made a mistake by not revising the serial numbers in Table 1 of that AD (which is retained in the NPRM). Although not addressed in its NPRM comment for AD 2005–13–02, Comair also requests that, for the reason discussed previously, Table 1 of the NPRM be limited to serial numbers 15001 through 15026 inclusive for Model CL–600–2D24 series airplanes. Comair states that it does not make sense to issue an AD against airplane serial numbers for which there is no action required.
We do not agree with Comair's request to revise Table 1 of this AD. As stated in the preamble of AD 2005–13–02, we revised the applicability of that AD to exclude those airplanes on which certain modification summaries and service information had been incorporated. This approach rather than changing the reference to certain serial numbers, accomplishes the same intent. The referenced modification summaries and service information in this AD (i.e., Modification Summaries 670T00494 or 670T11944; Modification Summary 670T11508; and Bombardier Service Bulletin 670BA–29–008, dated March 12, 2004, Revision A, dated May 5, 2004, or Revision B, dated August 28, 2007) identify the serial numbers of those airplanes. Therefore, we find no change to this AD is necessary in this regard.
Comair requests that the number of U.S.-registered airplanes specified in the Costs of Compliance section of the NPRM be changed from 116 to 255. Comair states that the Costs of Compliance section takes into account that either only airplanes with serial numbers below 10157 and 15027 are affected by this AD or the number needs to be adjusted to today's U.S. registry level. Comair states that a conversation with a Bombardier Field Service Representative indicates that all affected serial numbers have had the modification summaries and/or service bulletin specified in paragraph (c) of the NPRM incorporated and thus the NPRM does not apply to any U.S registered airplanes.
We agree with Comair to revise the Costs of Compliance section of this AD to reflect the current number of affected airplanes on the U.S. registry (i.e., 324 airplanes). We consulted with Bombardier and confirmed that all affected Bombardier Model CL–600–2C10 (Regional Jet series 700 & 701) series airplanes and Model CL–600–2D24 (Regional Jet series 900) series airplanes have been modified according to the optional terminating action specified in this AD. Therefore, currently, this AD imposes no additional financial burden on any U.S. operator. We have also revised the Costs of Compliance section of this AD in this regard.
We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
This AD affects about 324 airplanes of U.S. registry. We have been advised that all affected Bombardier Model CL–600–2C10 (Regional Jet series 700 & 701) series airplanes and Model CL–600–2D24 (Regional Jet series 900) series airplanes on the U.S. Register have been modified according to the optional terminating action specified in this AD. Therefore, currently, this AD imposes no additional financial burden on any U.S. operator.
However, if an unmodified airplane is imported and placed on the U.S. Register in the future, the actions required by this AD would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, we estimate the cost of this AD to be $80 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) is effective December 3, 2008.
(b) This AD revises AD 2005–13–02.
(c) This AD applies to the airplanes listed in Table 1 of this AD, certificated in any category, excluding those airplanes on which Modification Summary 670T00494 or 670T11944; and Modification Summary 670T11508 or Bombardier Service Bulletin 670BA–29–008, dated March 12, 2004, Revision A, dated May 5, 2004, or Revision B, dated August 28, 2007; has been incorporated.
(d) This AD resulted from reports of hydraulic pressure loss in either the number 1 or number 2 hydraulic system due to breakage or leakage of hydraulic lines in the aft equipment bay and reports of cracks on the aft pressure bulkhead web around the feed-through holes. We are issuing this AD to prevent loss of hydraulic pressure, which could result in reduced controllability of the airplane, and to detect and correct cracks on the aft pressure bulkhead web, which could result in reduced structural integrity of the aft pressure bulkhead.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 30 days after July 27, 2005 (the effective date of AD 2005–13–02), revise the Airworthiness Limitations section of the Instructions of Continued Airworthiness by inserting a copy of the new repetitive inspections and an optional terminating action of Bombardier CRJ 700/900 Series Temporary Revision (TR) MRM2–129, dated June 1, 2004, into section 1.4, Part 2 (Airworthiness Limitations), of Bombardier Regional Jet Model CL–600–2C10 and CL–600–2D24 Maintenance Requirements Manual, CSP B–053. Thereafter, except as provided in paragraph (h)(2) or (i) of this AD, no alternative structural inspection intervals may be approved for this aft pressure bulkhead and pylon pressure pan in the vicinity of the hydraulic fittings and the hydraulic tube adapters.
(g) When the information in TR MRM2–129, dated June 1, 2004, is included in the general revisions of the Maintenance Requirement Manual, the general revisions may be inserted into the Airworthiness Limitations section of the Instructions of Continued Airworthiness and this TR may be removed.
(h) If any crack is found during any inspection done in accordance with Bombardier CRJ 700/900 Series TR MRM2–129, dated June 1, 2004, or the same inspection specified in the general revisions of the Maintenance Requirement Manual, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) Before further flight, repair the crack in accordance with a method approved by either the Manager, New York Aircraft Certification Office (ACO), FAA; or Transport Canada Civil Aviation (TCCA) (or its delegated agent).
(2) At the applicable time specified in paragraph (h)(2)(i) or (h)(2)(ii) of this AD, revise the Airworthiness Limitations section of the Instructions of Continued Airworthiness by inserting a copy of the inspection requirements for the repair required by paragraph (h)(1) of this AD into Section 1.4, Part 2 (Airworthiness Limitations), of Bombardier Regional Jet Model CL–600–2C10 and CL–600–2D24 Maintenance Requirements Manual, CSP B–053. Thereafter, except as provided in paragraph (i) of this AD, no alternative structural inspection intervals may be approved for this aft pressure bulkhead and pylon pressure pan in the vicinity of the hydraulic fittings, and the hydraulic tube adapters.
(i) If the repair required by paragraph (h)(1) of this AD is done after the effective date of this AD: Revise the Airworthiness Limitations section within 12 months after the repair.
(ii) If the repair required by paragraph (h)(1) of this AD was accomplished before July 27, 2005: Revise the Airworthiness
(i)(1) The Manager, New York ACO, FAA, ATTN: Pong Lee, Aerospace Engineer, Airframe and Propulsion Branch, ANE–171, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7324; fax (516) 794–5531; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(j) Canadian airworthiness directive CF–2004–14, dated July 20, 2004, also addresses the subject of this AD.
(k) You must use Bombardier CRJ 700/900 Series Temporary Revision MRM2–129, dated June 1, 2004, to perform the actions that are required by this AD, unless the AD specifies otherwise.
(1) On July 27, 2005 (70 FR 35987, June 22, 2005), the Director of the Federal Register approved the incorporation by reference of Bombardier CRJ 700/900 Series Temporary Revision MRM2–129, dated June 1, 2004.
(2) Contact Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding 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 October 29, 2008. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
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 Bra nch (AFS–420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954–4164.
This 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 DOT Regulatory 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, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Social Security Administration.
Final rules.
We are modifying the rules we use to determine disability under titles II and XVI of the Social Security Act (“Act”) to revise the definition of persons “closely approaching retirement age” from “60–64” to “60 or older.” These changes acknowledge that we make disability determinations for persons over age 64. We are also making minor technical changes that will not
These rules are effective October 29, 2008.
Helen Droddy, Social Insurance Specialist, 922 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 965–1483, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, at
The electronic file of this document is available on the date of publication in the
We are finalizing, without change, the rules we proposed in the Notice of Proposed Rulemaking (NPRM) published in the
We regularly review our regulations to eliminate or modify any rules affected by legislative or policy changes. Legislative changes to the age at which persons reach full retirement age require that we process disability claims for persons who are over age 64. Therefore, we are modifying our rules at §§ 404.1563(e), 404.1568(d)(4), part 404, subpart P, appendix 2, §§ 202.00(f), and 203.00(c), 416.963(e), and 416.968(d)(4) to include persons over age 64 in the subcategory of those “closely approaching retirement age” for benefits based on disability under titles II and XVI of the Act. This modification will make the definition consistent with our definition of “full retirement age” and acknowledge that we make disability determinations for persons over age 64 under title XVI as well. The changes will not have any substantive effect on how we determine your eligibility for benefits.
We will implement these final rules upon publication. We will apply these rules to new applications filed on or after the effective date of these rules and to claims pending before us. We will also apply these final rules in those claims remanded to us from a Federal court. With respect to claims currently pending in Federal court, we expect that the court will review the Commissioner's final decision in accordance with the rules in effect at the time of that decision. If a court reverses the Commissioner's final decision and remands the case for further administrative proceedings after the publication of these final rules, we will apply the provisions of these final rules to the entire period at issue in the claim in our new decision.
In the NPRM we published in the
We find good cause for dispensing with the 30-day delay in the effective date of a substantive rule provided by 5 U.S.C. 553(d)(3). As explained above, these final rules only make technical corrections that help explain how we determine disability for persons who are over the age of 64. They have no substantive effect on how we determine your eligibility for benefits. However, without these changes, our rules will not reflect current law or our operating policy and procedures and, thus, may mislead the public. Accordingly, we believe that it is in the public interest to make these final rules effective on the date of publication.
We have consulted with the Office of Management and Budget (“OMB”) and determined that these rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they are not subject to OMB review.
We certify that these final rules will not have a significant economic impact on a substantial number of small entities as they affect persons only. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
These rules do not impose any public reporting requirements subject to the Paperwork Reduction Act.
Administrative practice and procedure; Blind; Disability benefits; Old-Age, Survivors, and Disability Insurance; Reporting and recordkeeping requirements; Social security.
Administrative practice and procedure; Aged: Blind; Disability benefits; Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
Secs. 202, 205(a), (b), and (d)–(h), 216(i), 221(a) and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a), (b), and (d)–(h), 416(i), 421(a) and (i), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note).
(e)
(d)
(4)
202.00
(f) For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.
203.00
(b) The functional capacity to perform medium work represents such substantial work capability at even the unskilled level that a finding of disabled is ordinarily not warranted in cases where a severely impaired person retains the functional capacity to perform medium work. Even the adversity of advanced age (55 or over) and a work history of unskilled work may be offset by the substantial work capability represented by the functional capacity to perform medium work. However, we will find that a person who (1) has a marginal education, (2) has work experience of 35 years or more doing only arduous unskilled physical labor, (3) is not working, and (4) is no longer able to do this kind of work because of a severe impairment(s) is disabled, even though the person is able to do medium work. (
(c) However, the absence of any relevant work experience becomes a more significant adversity for persons of advanced age (55 and over). Accordingly, this factor, in combination with a limited education or less, militates against making a vocational adjustment to even this substantial range of work and a finding of disabled is appropriate. Further, for persons closely approaching retirement age (60 or older) with a work history of unskilled work and with marginal education or less, a finding of disabled is appropriate.
Secs. 221(m), 702 (a)(5), 1611, 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 1383(b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98–460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note).
(e)
(d) Skills that can be used in other work (transferability). * * *
(4) Transferability of skills for persons of advanced age. * * * If you are
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of methyl esters of conjugated linoleic acid (cis-9, trans-11 and trans-10, cis-12 octadecadienoic acids) as a source of fatty acids in swine diets. This action is in response to a food additive petition filed by BASF Corp. (BASF), 100 Campus Dr., Florham Park, NJ.
This rule is effective October 29, 2008. Submit written or electronic objections and requests for a hearing by December 29, 2008. See section V of this document for information on the filing of objections.
You may submit objections and a request for a hearing, identified by Docket No. FDA–2003–F–0398, by any of the following methods:
Submit electronic objections in the following way:
• Federal eRulemaking Portal:
Submit written objections in the following ways:
• FAX: 301–827–6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of objections, FDA is no longer accepting objections submitted to the agency by e-mail. FDA encourages you to continue to submit electronic objections by using
Michaela G. Alewynse, Center for Veterinary Medicine (HFV–228), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–453–6866, e-mail:
In a notice published in the
FDA concludes that the data establish the safety and utility of methyl esters of conjugated linoleic acid (cis-9, trans-11 and trans-10, cis-12-octadecadienoic acids) for use as proposed with modification and that the food additive regulations should be amended as set forth in this document.
In accordance with § 571.1(h), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Veterinary Medicine by appointment with the information contact person. As provided in § 571.1(h), the agency will delete from the documents materials that are not available for public disclosure before making the documents available for inspection.
The agency has determined under 21 CFR 25.32(r) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment, nor an environmental impact statement is required.
Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see
Animal feeds, Food additives.
21 U.S.C. 321, 342, 348.
The food additive, methyl esters of conjugated linoleic acid (cis-9, trans-11 and trans-10, cis-12 octadecadienoic acids), may be safely used in swine feed in accordance with the prescribed conditions:
(a) The food additive is manufactured by the reaction of refined sunflower oil with methanol to produce fatty acid methyl esters, which then undergo conjugation to yield methyl esters of octadecadienoic acid. The additive consists of not less than 28 percent methyl ester of cis-9, trans-11-octadecadienoic acid, and not less than 28 percent methyl ester of trans-10, cis-12-octadecadienoic acid with the sum of the other methyl esters of octadecadienoic acid not to exceed 4 percent. The additive shall contain not less than 35 percent of other fatty acid esters composed of oleic acid, palmitic acid, stearic acid, linoleic acid, and other associated acid esters.
(b) The additive is used or intended for use in the feed of growing and finishing swine as a source of fatty acids at levels not to exceed 0.6% in the finished feed.
(c) The additive meets the following specifications:
(1) Free methyl alcohol not to exceed 0.015%.
(2) Insoluble impurities not to exceed 0.1%.
(3) Moisture not to exceed 0.5%.
(4) Unsaponifiable matter not to exceed 1.0%.
(d) To assure safe use of the additive, in addition to the other information required by the act:
(1) The label and labeling of the additive and any feed premix shall bear the following:
(i) The name of the additive.
(ii) A statement to indicate that methyl esters of conjugated linoleic acid (cis-9, trans-11 and trans-10, cis-12 octadecadienoic acids) must not be added to vitamin or mineral premixes.
(2) The label and labeling of the additive, any feed premix, or complete feed prepared therefrom shall bear adequate directions for use.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
This Treasury decision establishes the 13.4-square mile “Leona Valley” American viticultural area in northeastern Los Angeles County, California. We designate viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
N.A. Sutton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 925 Lakeville St., No. 158, Petaluma, CA 94952; telephone 415–271–1254.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographical origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—
• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;
• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;
• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features that distinguish the proposed viticultural area from surrounding areas;
• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and
• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.
Mr. Ralph Jens Carter submitted a petition for establishment of the 13.4-square mile Leona Valley viticultural area on behalf of the Antelope Valley Winegrowers Association, the Leona Valley Winery, and Donato Vineyards. The area currently includes 20 acres of vineyards, and more acreage for wine grape growing is under development. The proposed Leona Valley viticultural area boundary line does not affect or overlap any other proposed or established viticultural area.
The proposed boundary line defines an area where viticulture is already established or has potential for establishment. Consequently, the area defined is limited to the valley floor and side slopes. The distinguishing features of the proposed viticultural area include the physical characteristics of the San Andreas Fault system, the fault-controlled Leona Valley, and the surrounding, high-elevation mountains. The climate, geology, and soils distinguish the proposed viticultural area from areas outside of the proposed boundary line.
According to the petitioner, the name “Leona” derives from an early rancher named Miguel Leonis, and in the 1880s, a homesteader from Nebraska called the area “Leona Valley.” The “Leona Valley” name identifies a valley, a town within the valley, a ranch (the Leona Valley Ranch), and a festival (the annual Leona Valley Cherry Festival).
The petitioner provides maps that show that the Leona Valley is located in the northeast part of Los Angeles County, California. The “Leona Valley” name appears on the USGS Ritter Ridge, Sleepy Valley, and Del Sur quadrangle maps, which the petitioner uses to define the boundary line of the proposed viticultural area. The Sleepy Valley map also identifies a small town in the valley as “Leona Valley.” A recent atlas identifies both a valley and small town within the proposed viticultural area as “Leona Valley” (The DeLorme Southern and Central California Atlas and Gazetteer, 2005, page 79).
According to the petitioner, and as evidenced by the written boundary description and the USGS Sleepy Valley quadrangle map, the proposed viticultural area includes the town and valley which are both named “Leona Valley.” The proposed boundary line borders the Angeles National Forest to the west and the Antelope Valley and the Mojave Desert to the northeast. Mountains and hills surround all sides of the valley. The floor and side slopes of the Leona Valley influence the shape of the proposed viticultural area, which includes vineyards in remote, but suitable, areas, but excludes steep slopes where erosion is a hazard.
According to the petitioner, historically, the Native American Shoshone Tribe lived as hunters and gatherers in the Leona Valley area. In
In the early 1900s the John Ritter family began to plant grapes in the Leona Valley area. The Ritter family winery, Belvino Vineyards, aged wine in a cave for at least 5 years before bottling and selling the wine on national and international markets. During Prohibition, the Ritters ceased producing wine. The petitioner notes that local residents report that zinfandel and mission vines planted in the early 1900s are still growing.
Currently, the proposed Leona Valley viticultural area contains 20 acres of commercial wine grape production on the Reynolds Family Vineyard and an acreage of pinot noir grapes on land owned by Donato Vineyards. At the time of filing the petition, Donato Vineyards, at the southeast end of the Leona Valley, planned to develop another 10 acres for growing wine grapes.
The petitioner states that the distinguishing features of the proposed Leona Valley viticultural area consist of climate, physical features, geology, and soils. As evidence of many of the distinguishing features of the proposed viticultural area, the petitioner cites the Soil Survey of the Antelope Valley Area, California (United States Department of Agriculture, Soil Conservation Service, in cooperation with the University of California Agricultural Experiment Station, 1970).
The petitioner explains that the soil survey designates the southern and western parts of the Antelope Valley and the Leona Valley as Major Land Resource Area (MLRA) 19, Southern California Coastal Plain. MLRA 19 has a distinctive combination of climate, soils, and mild temperatures, including an annual, 210- to 300-day frost-free period. Also, MLRA 19 is hot and dry in summer and cool and moist in winter. It is suitable to a wide variety of field, fruit, and nut crops. Annual precipitation ranges from 9 to 16 inches in MLRA 19, and irrigation use is routine. The soil survey shows that the land management techniques and cropping systems used in MLRA 19 are different from those used in the adjacent MLRA 30, Mojave Basin and Range, and MLRA 20, Southern California Mountains.
The petitioner also cites the Sunset Western Garden Book, which classifies the Leona Valley area as Zone No. 18, Southern California's Interior Valleys (Sunset Publishing Corporation, Menlo Park, California, 1995). In this zone the continental air mass is a major influence on climate, and the Pacific Ocean determines the climate in the valley only about 15 percent of the time.
According to the petitioner, annual precipitation within the proposed Leona Valley viticultural area ranges from 9 to 12 inches. In the Mojave Desert to the east of the Leona Valley, the range is only 4 to 9 inches. In the mountainous areas surrounding Leona Valley to the south, west, and north, the range is between 12 and 20 inches.
The petitioner states that the growing season of the proposed viticultural area consists of warm days and cool nights. The cool nights slow the ripening of the grapes, helping the grapes to retain their natural acidity. Air drainage off the slopes of the hills and mountains helps prevent spring frost damage to grapes.
The petitioner submitted comparative data based on the Winkler Climate Classification System. In the Winkler system, heat accumulation per year defines climatic regions for grape growing. As a measurement of heat accumulation during the growing season, 1 degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, which is the minimum temperature required for grapevine growth (see “General Viticulture,” by Albert J. Winkler, University of California Press, 1974.) Climatic region I has less than 2,500 degree days per year; region II, 2,501 to 3,000; region III, 3,001 to 3,500; region IV, 3,501 to 4,000; and region V, 4,001 or more.
The petitioner states that the air temperatures during the growing season in the proposed viticultural area have an average heat summation of 4,060 degree days, which falls into the low range of region V. The annual heat summation totals of the regions in and around the proposed Leona Valley viticultural area are listed in the table below.
According to USGS maps of the region, the Leona Valley is a low, sloping landform with elevations between 2,932 and 3,800 feet. It is surrounded by higher hills, Portal Ridge, Ritter Ridge, Sierra Pelona, and the mountains of the Angeles National Forest, the highest of which has an elevation of 4,215 feet. According to the petitioner, the Leona Valley comprises isolated knolls of significantly different elevations and, in places, narrows to a width of a mile.
The petitioner explains that the San Andreas Fault, a major continental fault system, is a significant distinguishing feature of the proposed Leona Valley viticultural area. As shown on the USGS maps of the region, this fault and its tributary faults in the Leona Valley trend southeast to northwest. The petitioner explains that the Leona Valley formed either when two parallel fault lines lifted mountains beside a drop-down area or when erosion over thousands of years caused a deep dissection in the fault zone. Seismic movement along the fault line has formed ridges and isolated hills and exposed various rocks.
The petitioner states that ground water provides a plentiful supply of water for vineyard irrigation within the proposed Leona Valley viticultural area. As shown on the Ritter Ridge, Sleepy Valley, and Del Sur quadrangle USGS maps, many agricultural wells tap into the ground water.
The petitioner explains that relative displacement and a lack of continuity of the rocks on either side of the San Andreas Fault contribute to the complexity, weakening, and erosion of the parent rock. Near some portions of the fault the varying sedimentary strata determine the geologic formation.
Citing a California Department of Conservation Geologic Map, the
The petitioner explains that a fault increases the variety of rock exposed on the surface and eventually results in the formation of a greater variety of soil textures. Thus, the San Andreas fault influenced the properties and mineralogy of the soils in the Leona Valley.
The petitioner states that the soils on the Leona Valley floor differ from those beyond the boundary line of the proposed viticultural area. The surface layer of the soils in the Leona Valley formed in mixed decayed organic matter and soil material that originated on the surrounding mountains. Multiple rock types on the valley floor were the parent material of alluvial soils that have diverse mineralogy and texture. The soils on the valley floor are deep and moderately drained; those on the surrounding hills are shallow and excessively well drained.
According to the soil survey, the soils of the proposed Leona Valley viticultural area are mainly the Hanford-Ramona-Greenfield association on alluvial fans and terraces. This association consists of nearly level to moderately steep, well drained, very deep soils that have a surface layer of loamy sand to loam. Hanford soils are well drained. They do not have a hardpan or a compacted clay layer, and are easily worked.
According to the petitioner, Chino loam is in some areas of the proposed Leona Valley AVA. This soil is suited to use as pasture and to seeding to perennial grasses. It is very deep and poorly drained, and has a seasonal high water table. Permeability in this soil is slow. In some places water is ponded on this soil. Growers install drainage systems or manage their crops to counteract the poor drainage of this soil.
The petitioner explains that the Vista-Amagora association is among the dominant soils at higher elevations outside the boundary line of the proposed Leona Valley viticultural area. This association consists of strongly sloping to steep, well drained to excessively drained soils that have a surface layer of coarse sandy loam. South of the valley, in smaller areas, is the Anaverde-Godde association. It consists of moderately steep or steep, well drained soils that have a surface layer of sandy loam or loam.
TTB published Notice No. 76 regarding the proposed Leona Valley viticultural area in the
After careful review of the petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Leona Valley” American viticultural area in Los Angeles County, California, effective 30 days from the publication date of this document.
See the narrative boundary description of the viticultural area in the regulatory text published at the end of this document.
The maps for determining the boundary of the viticultural area are listed below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Leona Valley,” is recognized under 27 CFR 4.39(i)(3) as a name of viticultural significance. The text of the new regulation clarifies this point. Consequently, wine bottlers using “Leona Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin. TTB has determined that only the full name “Leona Valley”, and not “Leona” standing alone, has viticultural significance.
For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term specified as having viticultural significance in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name or other term of viticultural significance as an appellation of origin and that name or other term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other term of viticultural significance appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.
Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
We certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.
N.A. Sutton of the Regulations and Rulings Division drafted this notice.
Wine.
27 U.S.C. 205.
(a)
(b)
(1) Ritter Ridge, Calif., 1958; Photorevised 1974;
(2) Sleepy Valley, CA, 1995;
(3) Del Sur, CA, 1995; and
(4) Lake Hughes, CA, 1995.
(c)
(1) From the beginning point on the Ritter Ridge map at the intersection of Elizabeth Lake Pine Canyon Road and the section 23 east boundary line, T6N, R13W, proceed straight south along the section 23 east boundary line approximately 0.1 mile to its intersection with the 3,000-foot elevation line, T6N, R13W; then
(2) Proceed west along the 3,000-foot elevation line to its intersection with the section 23 west boundary line, T6N, R13W; then
(3) Proceed south along the section 23 west boundary line to the southwest corner of section 23 at the 3,616-foot marked elevation point, T6N, R13W; then
(4) Proceed west along the section 22 south boundary line, crossing onto the Sleepy Valley map, and continuing along the section 21 south boundary line, crossing over Pine Creek, to its intersection with the 3,400-foot elevation line, T6N, R13W; then
(5) Proceed west along the 3,400-foot elevation line to its intersection with the section 19 south boundary line and Bouquet Canyon Road, T6N, R13W; then
(6) Proceed straight west along the section 19 south boundary line to its intersection with the 3,560-foot elevation line, an unimproved road, and a power transmission line, north of Lincoln Crest, T6N, R13W; then
(7) Proceed northeast along the 3,560-foot elevation line across section 19 to its east boundary line, T6N, R13W; then
(8) Proceed in a straight line north-northwest approximately 0.25 mile to its intersection with a trail and the 3,800-foot elevation line, T6N, R13W; then
(9) Proceed northwest along the meandering 3,800-foot elevation line through section 19 to its intersection with the section 13 southeast corner, T6N, R14W; then
(10) Proceed straight west, followed by straight north, along the marked Angeles National Forest border to the section 11 southeast corner; then
(11) Proceed straight north along the section 11 east boundary line to its intersection with the 3,400-foot elevation line south of an unimproved road, T6N, R14W; then
(12) Proceed generally northwest along the 3,400-foot elevation line through section 11, crossing onto the Del Sur map, to its intersection with the section 3 southeast corner, T6N, R14W; then
(13) Proceed straight west to the section 4 southeast corner, T6N, R14W; then
(14) Proceed straight north along the section 4 east boundary line approximately 0.05 mile to its intersection with the 3,600-foot elevation line, T6N, R14W; then
(15) Proceed northwest along the 3,600-foot elevation line, through section 4 and crossing onto the Lake Hughes map, to its intersection with the Angeles National Forest border and the section 4 western boundary line, T6N, R14W; then
(16) Proceed straight north along the section 4 western boundary line to its intersection with BM 3402, south of Andrade Corner, T7N, R14W; then
(17) Proceed in a line straight northeast, crossing onto the Del Sur map, to its intersection with the marked 3,552-foot elevation point, section 33, T7N, R14W; then
(18) Proceed in a line straight east-southeast to its intersection with the marked 3,581-foot elevation point, and continue in a straight line east-southeast to its intersection with the marked 3,637-foot elevation point, T6N, R14W; then
(19) Proceed in a line straight northeast to its intersection with the section 2 northwest corner, T6N, R14W; then
(20) Proceed straight east along the section 2 north boundary line 0.35 mile to its intersection with the 3,600-foot elevation line, T6N, R14W; then
(21) Proceed north and then generally southeast along the 3,600-foot elevation line that runs parallel to and south of the Portal Ridge to the elevation line's intersection with the section 7 east boundary line, T6N, R13W; then
(22) Proceed straight south along the section 7 east boundary line, crossing onto the Sleepy Valley map, to its intersection with the 3,400-foot elevation line north of the terminus of 90th Street, T6N, R13W; then
(23) Proceed generally east-southeast along the 3,400-foot elevation line that runs north of the San Andreas Rift Zone to its intersection with the section 16 east boundary line, T6N, R13W; then
(24) Proceed straight south along the section 16 east boundary line to its intersection with the 3,000-foot elevation line, between Goode Hill Road and Elizabeth Lake Pine Canyon Road, T6N, R13W; then
(25) Proceed generally southeast along the 3,000-foot elevation line, crossing onto the Ritter Ridge map, to its intersection with the section 23 east boundary line, north of the intermittent Amargosa Creek and Elizabeth Lake Pine Canyon Road, T6N, R13W; then
(26) Proceed straight south along the section 23 east boundary line, returning to the beginning point.
Occupational Safety and Health Administration, Labor.
Final rule; clarifications; correcting amendments.
The Occupational Safety and Health Administration (OSHA)
The corrections become effective on October 29, 2008.
Mr. David Wallis, Directorate of Standards and Guidance, Room N–3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693–2222.
On February 14, 2007, OSHA published a revision of its electrical installation standard for general industry found in 29 CFR part 1910, subpart S (72 FR 7136). This final rule went into effect on August 13, 2007. Since the final rule was promulgated, the Agency has received some questions from the public regarding one provision, 29 CFR 1910.304(b)(3)(ii). At its meeting on August 1, 2007, in Oakland, CA, the Maritime Advisory Committee on Occupational Safety and Health (MACOSH) discussed the provision and several MACOSH members were uncertain about the extent of the application of this provision to shipyard employment and had questions on how the Agency would interpret the rule. Consequently, MACOSH recommended that the Agency use the best available means to assist employers in complying with the requirements of the provision and that the Agency delay the effective date of § 1910.304(b)(3)(ii) for a period of 6 months or until the Agency can clarify the standard.
In this notice, OSHA addresses these questions and makes one change to the regulatory text of the provision in order to clarify OSHA's intent regarding its scope. This change does not alter the substantive obligations of affected parties. Additionally, OSHA is correcting two typographical errors located in Table S–3 of the final rule.
As originally published, the introductory text to § 1910.304(b)(3)(ii) read as follows:
The following requirements apply to temporary wiring installations that are used during maintenance, remodeling, or repair of buildings, structures, or equipment or during similar construction-like activities.
Paragraph (b)(3)(ii) was taken from Section 2–2.4.2 of the 2000 edition of NFPA 70E, which reads, in relevant part, as follows:
2–2.4.2 Ground-Fault Protection for Personnel. Ground-fault protection for personnel for all temporary wiring installations shall be provided to comply with 2–2.4.2.1 or 2–2.4.2.2 below. This section shall apply only to temporary wiring installations used to supply temporary power to equipment used by personnel during construction, remodeling, maintenance, repair, or demolition of buildings, structures, equipment or similar activities.
Both OSHA's final rule and NFPA 70E are intended to apply to temporary wiring installations used during the performance of construction-like activities. From questions the Agency has received about this provision, the intent of the rule may not be readily apparent from the text. Because part 1910 does not apply to construction, the Agency removed “construction” from the list of activities specifically mentioned in NFPA 70E and changed “similar activities” to “similar construction-like activities.” OSHA did not, however, intend to deviate from the underlying intent of the NFPA 70E provision, which was to limit its application to activities that were construction-like in nature. The Agency is concerned that the regulatory text of § 1910.304(b)(3)(ii) may be read to include activities that are not construction-like. To clarify the Agency's intent, OSHA is revising the introductory text to § 1910.304(b)(3)(ii) to read:
The following requirements apply to temporary wiring installations that are used during
This change makes it clear that § 1910.304(b)(3)(ii) applies only to such activities.
When determining whether the provisions of § 1910.304(b)(3)(ii) apply, employers must determine whether a particular activity is “construction-like” in nature. The preamble to the final rule provided examples of what OSHA considers “construction-like activities” in the discussion of § 1910.305(a)(2)(iii) related to the use of temporary wiring over 600 volts (72 FR 7163).
It should be noted that the discussion of the term “construction-like activities” here and in the preamble to OSHA's final rule applies only to the use of this term in subpart S. It should also be noted that not all maintenance, remodeling, or repair work is construction-like.
Construction-like activities fall into two general categories: Activities that would be covered under OSHA's construction standards but for the fact that they are specifically covered by other OSHA standards, and all other activities that do not qualify as construction but involve electrical hazards similar to those typically found in construction work.
The vast majority of activities covered under subpart S are in the first category. For example, ship building and ship repair would be considered to meet the definition of “construction” because of their scale and complexity; nevertheless, the hazards associated with this work are specifically covered by OSHA's shipyard employment standards. However, the shipyard standards do not protect employees from all of the hazards addressed by paragraph (b)(3)(ii) of § 1910.304; in such instances, this paragraph applies to hazards not covered by the shipyard standards, as outlined in § 1910.5(c). (The application of subpart S to shipyard employment is discussed in more detail in the preamble to the final rule, 72 FR 7141.)
The remaining activities intended to be covered under subpart S fall into the second category of construction-like activities. This category includes certain “maintenance, remodeling, or repair activities involving buildings, structures, or equipment” that pose electrical hazards similar to those typically found in construction work. In this respect, OSHA intends the term “construction-like” to apply to activities that, while not construction, involve some of the hazards that are typically found in construction work. In general, these are activities that pose hazards that are similar to those associated with the use of temporary receptacles on construction sites—that is, hazards resulting from more severe use or environmental conditions. Examples of such activities include: Damage to a cord set
Some examples of this type of construction-like activity were given in the preamble to the final rule, including clean up and disaster remediation. To illustrate, if a storm blew over a tree on a factory's premises and temporary wiring was employed to power a chainsaw and other clean-up equipment, such remediation activity would be construction-like.
Other examples of construction-like activities follow.
Maintenance activities that do not involve electrical hazards similar to those found in construction are not “construction-like,” and therefore are not subject to § 1910.304(b)(3)(ii). Building maintenance activities such as floor polishing and vacuuming and drilling holes to hang pictures on walls, would be some common examples of such activities.
Activities that are large in scale, complex, or require significant time, materials, and tools to complete typically would be considered actual construction work instead of construction-like.
In addition, paragraph (b)(3)(ii) applies only to temporary wiring installations. OSHA does not consider a single extension cord set connected to a permanent receptacle outlet to be a temporary wiring installation.
Paragraph (a)(2)(v)(A) of § 1910.305 requires temporary wiring branch circuits to originate in an approved power outlet or panelboard. Normally, this is done through a portable distribution board, portable power outlet, or similar equipment. All the wiring extending from the portable power outlet or panelboard would be considered temporary wiring. However, in a permanent facility, it may be possible to run a series of cord sets from permanent outlets as a means of supplying power on a temporary basis. Although the NEC and NFPA make no clear distinction between temporary wiring and the use of extension cord sets, under certain conditions, the use of multiple cord sets would constitute a temporary wiring installation. A series of extension cord sets run from a single permanent outlet would constitute temporary wiring though such an installation would not strictly comply with the requirements relating to the origin of temporary branch circuits. Similarly, running a long extension cord set from a permanent outlet to power more than one piece of electric equipment would result in a temporary wiring installation.
Thus, for the purposes of § 1910.304(b)(3)(ii), OSHA will consider as “temporary wiring” the use of more than one extension cord (connected in series or otherwise) to a permanent outlet, or the temporary connection of more than one piece of utilization equipment to an extension cord set that is connected to a permanent receptacle outlet.
OSHA notes, however, that this temporary wiring would only be covered by § 1910.304(b)(3)(ii) if it is used during “construction-like activities.”
Paragraph (b) of § 1910.304 applies only to branch circuits. The definition of “branch circuit” is “[t]he circuit conductors between the final overcurrent device protecting the circuit and the outlets.” The definition of “outlet” is “[a] point on the wiring system at which current is taken to supply utilization equipment.” Thus, the branch circuit extends from the final overcurrent device to points on the circuit where power is taken to supply utilization equipment (for example, an electric tool). Receptacles that are used to power downstream cord-connected overcurrent devices for additional circuits are not covered because they are not part of the branch circuit. For example, receptacles on a spider box that supply downstream spider boxes with overcurrent-protected circuits would not be covered by § 1910.304(b)(3)(ii). A spider box is a portable power outlet unit used with temporary wiring installations. The box, which is typically fed by a 125/250-volt, 50-ampere cord set, contains overcurrent protection for 125- or 250-volt, 15-, 20-, or 30-ampere receptacle outlets
The standard requires ground-fault circuit interrupters for personnel protection in § 1910.304(b)(3)(ii)(A). As electric equipment, these GFCIs must be NRTL approved.
The standard requires GFCI protection for temporary circuits supplying lighting only when those circuits also supply receptacles. Employers are not required by the standard to install GFCIs for lighting if the design of the temporary lighting is such that the circuits do not also supply receptacles.
Under the Administrative Procedure Act (APA), an agency may make a “good cause” finding that notice and comment rulemaking procedures would be impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B); see also 26 CFR 1911.5 (permitting OSHA to promulgate minor changes or amendments to standards without notice and comment when the changes are accompanied by a statement of good cause for the absence of notice and comment). An agency may similarly make the rule effective upon publication when it determines that delaying the effective date of the rule, as normally required by 5 U.S.C. 553, is unnecessary and good cause exists to make the rule effective immediately. 5 U.S.C. 553(d)(3).
In this instance, OSHA finds that good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) to forego public notice and comment for these minor amendments and to make them effective immediately upon publication in the
Electric power, Fire prevention, Hazardous substances, Occupational safety and health, Safety.
This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue, NW., Washington, DC 20210.
This action is taken pursuant to sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Secretary of Labor's Order No. 5–2007 (72 FR 31160), and 29 CFR Part 1911.
Part 1910 of Title 29 of the Code of Federal Regulations is amended as follows:
Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 8–76 (41 FR 25059), 1–90 (55 FR 9033), 5–2002 (67 FR 65008), 5–2007 (72 FR 31160), as applicable; 29 CFR part 1911.
(b) * * *
(3) * * *
(ii) The following requirements apply to temporary wiring installations that are used during construction-like activities, including certain maintenance, remodeling, or repair activities, involving buildings, structures or equipment.
Minerals Management Service (MMS), Interior.
Final rule; delay of effective date.
MMS is delaying until December 8, 2008, 60 days from the date of publication, the effective date of a rule that will conform the regulations at 30 CFR parts 203 and 260 to the Federal Court's decision in
The effective date of the rule amending 30 CFR parts 203 and 260 published at 73 FR 58467, October 7, 2008 is delayed until December 8, 2008.
Marshall Rose, Chief, Economics Division, Minerals Management Service at (703) 787–1536.
The rule published October 7, 2008, amends 30 CFR parts 203 and 260 to conform the regulations to the decision in
Department of the Navy, DoD.
Final rule.
The Department of the Navy amends its rules to update existing sections relating to the authority and procedures to designate trustees for Navy and Marine Corps service members who have been determined to be mentally incompetent pursuant to 37 U.S.C. Chapter 11. The amendments will comport with current policy reflected in Chapter XIV of the Manual of the Judge Advocate General (JAGMAN).
This rule is effective October 29, 2008.
Lieutenant Commander Tanya M. Cruz, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone: 703–614–7245.
The Department of the Navy published a proposed rule at 73 FR 38350 on July 7, 2008, to amend regulations concerning the authority and procedures to designate trustees for members of the Naval service who have been determined to be mentally incompetent in accordance with 37 U.S.C. Chapter 11. As a result of organizational change in the Office of the Judge Advocate General, the functions under Chapter XIV were transferred from the Judge Advocate General to the Defense Finance and Accounting Service-Cleveland Center (DFAS–CL), Office of Continuing Government Activity (CGA). No comments on the proposed rule were submitted. Accordingly, the Department of the Navy amends its rules concerning the authority and procedures to designate trustees for Navy and Marine Corps service members who have been determined to be mentally incompetent pursuant to 37 U.S.C. Chapter 11. It has been determined that this rule amendment is not a major rule within the criteria specified in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public.
Executive Order 12866, “Regulatory Planning and Review.” It has been determined that the changes to 32 CFR part 726 are not considered a “significant regulatory action.” The rule does not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104–4). It has been certified that 32 CFR part 726 does not contain a Federal Mandate that may result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
Public Law 96–354, “Regulatory Flexibility Act” (5 U.S.C. 601). It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule implements the processing of the proper administrative processing and consideration of claims on behalf of and against the United States, and does not economically impact the Federal government's relations with the private sector.
Public Law 96–511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35). This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR part 1320). U.S.C. Chapter 35).
Executive Order 13132, “Federalism”. It has been certified that 32 CFR part 726 does not have federalism implications as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the States; or
(3) The distribution of power and responsibilities among the various levels of government.
Administrative practice and procedure, Military personnel, Reporting and recordkeeping requirements, Trusts and trustees.
5 U.S.C. 301; 10 U.S.C. 5013, and 5148; 37 U.S.C. 601–604, and 1001; 32 CFR 700.105 and 700.312.
(a) * * * The Secretary of the Navy has authority to designate a trustee in the absence of notice that a legal committee, guardian, or other legal representative has been appointed by a State court of competent jurisdiction (37 U.S.C. 601–604). This authority is exercised by the Defense Finance and Accounting Service-Cleveland Center (DFAS–CL), who has delegated it to DFAS–CL, Office of Continuing Government Activity (DFAS–CL(CGA)). Trustees receive the active duty pay and allowances, amounts due for accrued or accumulated leave, and retired pay or retainer pay, that are otherwise payable to a member found by competent medical authority to be mentally incapable of managing his affairs.
(a)
(2) DFAS–CL(CGA) may request the commanding officer of any Naval medical facility, or request the commanding officer of another service medical facility or administrator of a Department of Veterans Affairs medical facility, convene a competency board in accordance with this section to determine the mental capability of a member to manage his financial affairs.
(3) A finding of restoration of competency or capability to manage personal and financial affairs may be accomplished in the same manner specified in Chapter 18, MANMED, except that the board may consist of one or two Medical Department officers or physicians, one of whom must be a Navy psychiatrist or clinical psychologist.
(4) At least one officer on the competency board, preferably the psychiatrist or clinical psychologist, will personally observe the member and ensure that the member's medical record, particularly that portion concerning his mental health, is accurate and complete.
(5) The requirement to convene a competency board under this chapter is in addition to and separate from the medical board procedures. Each board member signs the report of the board and certifies whether the member is or is not mentally capable of managing his financial affairs. After approval by the convening authority, the original board report is forwarded to DFAS–CL(CGA).
(b)
Upon receipt of a report of a competency board that a member has been found mentally incapable of managing his financial affairs, DFAS–CL(CGA) will initiate action to appoint a trustee, provided no notice of appointment of a committee, guardian, or other legal representative by a State court of competent jurisdiction has been received by DFAS–CL(CGA).
The Chief of Naval Personnel or the Deputy Commandant, Manpower & Reserve Affairs, may issue travel orders to a member to appear before a competency board convened to determine whether the member is mentally capable of managing his financial affairs. In the case of permanently retired members, travel will be at no cost to the Government.
Upon notification by the commanding officer of the medical facility preparing the board report that a member has been declared mentally incapable of managing his financial affairs, DFAS–CL(CGA) will suspend the member's pay. Thereafter, DFAS–CL(CGA) or his designee will direct payment of monies to:
(a) The appointed trustee;
(b) The legal representative appointed by a State court of competent jurisdiction; or
(c) Directly to the member following a determination the member is capable of managing his financial affairs.
Until a trustee is appointed, DFAS–CL(CGA) may appoint the member's designated next of kin to receive emergency funds equal to, but not to exceed the amount of pay due the incompetent member for a period of one month. These funds will be deducted from the member's pay account and will be used for the benefit of the member and any legal dependents.
(a)
(b)
United States Coast Guard; DHS.
Notice of extension of compliance date, Captain of the Port Zones Buffalo, Duluth, Detroit, Lake Michigan, and Sault Ste. Marie.
This document informs owners and operators of facilities located within Captain of the Port Zones Buffalo, Duluth, Detroit, Lake Michigan, and Sault Ste. Marie that the date by which they must implement access control procedures utilizing TWIC has been extended to no later than December 1, 2008. This extension is due to a building-wide loss of power that occurred on October 21, 2008, at the government facility that houses the TWIC system, which affected the system's ability to activate TWICs.
The new compliance date for the TWIC regulations found in 33 CFR part 105 for Captain of the Port Zones Buffalo, Duluth, Detroit, Lake Michigan, and Sault Ste. Marie is December 1, 2008.
Comments and material received from the public, as well as documents mentioned in this document as being available in the docket, are part of dockets TSA–2006–24191 and USCG–2006–24196, and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
If you have questions on this document, call LCDR Jonathan Maiorine, telephone 1–877–687–2243. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–493–0402.
On May 22, 2006, the Department of Homeland Security (DHS) through the United States Coast Guard (Coast Guard) and the Transportation Security Administration (TSA) published a joint notice of proposed rulemaking entitled “Transportation Worker Identification Credential (TWIC) Implementation in the Maritime Sector; Hazardous Materials Endorsement for a Commercial Driver's License” in the
On May 7, 2008, the Coast Guard and TSA issued a final rule to realign the compliance date for implementation of the Transportation Worker Identification Credential. 73 FR 25562. The date by which mariners need to obtain a TWIC, and by which owners and operators of vessels and outer continental shelf facilities must implement access control procedures utilizing TWIC, is now April 15, 2009 instead of September 25, 2008. Owners and operators of facilities that must comply with 33 CFR part 105 will still be subject to earlier, rolling compliance dates, as set forth in 33 CFR 105.115(e). The Coast Guard announced the rolling compliance dates, as provided in 33 CFR 105.115(e), at least 90 days in advance via notices published in the
On July 9, 2008, we announced the compliance date for COTP Zones Buffalo, Duluth, Detroit, Lake Michigan, and Sault Ste. Marie would be October 31, 2008. 73 FR 39323.
Title 33 CFR 105.115(e) currently states that “[f]acility owners and operators must be operating in accordance with the TWIC provisions in this part by the date set by the Coast Guard in a Notice to be published in the
This extension is being granted due to the disruption to TWIC activations caused by a building-wide loss of power that occurred on October 21, 2008, at the government facility that houses the TWIC system. The TSA and Coast Guard have determined that the new compliance date provides sufficient time for those who were unable to activate their TWICs during the disruption to return to an enrollment center and complete activation.
We strongly encourage persons requiring unescorted access to facilities regulated by 33 CFR part 105 and located in this COTP Zone to enroll for their TWIC as soon as possible, if they haven't already. Additionally, we note that the TWIC Final Rule advises owners and operators of MTSA regulated facilities of their responsibility to notify employees of the TWIC requirements. Specifically, 33 CFR 105.200(b)(14) requires owners or operators of MTSA regulated facilities to “[i]nform facility personnel of their responsibility to apply for and maintain a TWIC, including the deadlines and methods for such applications.” Information on enrollment procedures, as well as a link to the pre-enrollment website (which will also enable an applicant to make an appointment for enrollment), may be found at
You may visit our Web site at
Department of Veterans Affairs.
Interim final rule.
The Department of Veterans Affairs (VA) is amending its
Written comments may be submitted through
Maya Ferrandino, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (727) 319–5847. (This is not a toll-free number.)
The Secretary of Veterans Affairs has the authority to prescribe regulations governing the nature and extent of proof and evidence required to establish entitlement to benefits. 38 U.S.C. 501(a)(1). Under 38 CFR 3.303(a), one of the ways that service connection of a disability may be established is by affirmatively showing inception or aggravation during service of a disease or injury that resulted in that disability. However, in order to establish service connection for PTSD in cases in which a veteran did not engage in combat with the enemy or was not a prisoner of war, current 38 CFR 3.304(f) requires: (1) Medical evidence diagnosing PTSD; (2) medical evidence establishing a link between a veteran's current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.
The longstanding requirement in § 3.304(f) of credible supporting evidence that the claimed in-service stressor occurred is based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM–IV), to which a diagnosis of a mental disorder must conform. 38 CFR 3.304(f) and 4.125(a). According to DSM–IV at 427, the first diagnostic criterion for PTSD is:
The person has been exposed to a traumatic event in which both of the following were present:
(1) The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) The person's response involved intense fear, helplessness, or horror.
However, VA has found, based on claims submitted since September 11, 2001, that service members are increasingly being diagnosed with PTSD while still in service, rather than after discharge from service. The increased incidence of in-service diagnoses of PTSD is attributable to advances in medicine and increased monitoring of service members' mental health by the service departments. Given the ability to more quickly diagnose PTSD and the proximity between an in-service diagnosis of PTSD and the claimed occurrence of the stressor, VA no longer believes it is necessary to require evidence corroborating occurrence of the stressor in claims based on an in-service diagnosis.
We are therefore amending § 3.304(f) to relax the requirements for establishing service connection for PTSD that was diagnosed in service. We are adding a new paragraph, which provides that, if the evidence shows that the veteran's PTSD was diagnosed during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. We believe that this change will contribute to faster processing of PTSD claims by eliminating the need for VA to develop evidence of occurrence of the in-service stressor in claims in which the veteran's PTSD was diagnosed during service.
For claims based on a postservice diagnosis of PTSD, we will continue to require credible supporting evidence of the occurrence of the claimed in-service stressor. The U.S. Court of Appeals for Veterans Claims (CAVC) has held that VA is “not bound to accept [the claimant's] uncorroborated account” of a stressor or a “social worker's and psychiatrist's unsubstantiated * * * opinions that the alleged PTSD had its origins in appellant's [military service].”
Also, we are eliminating the hyphen in the term “post-traumatic stress disorder” in § 3.304(f) to reflect current medical terminology.
In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans Affairs finds that there is good cause to dispense with the opportunity for prior comment with respect to this rule, which eliminates the need for evidence to corroborate the occurrence of a stressor in claims in which a veteran was diagnosed with PTSD during service. The Secretary finds that it is impracticable, unnecessary, and contrary to the public interest to delay this regulation, which will speed up processing of PTSD claims, for the purpose of soliciting prior public comment because the regulation relieves an unnecessary proof requirement for certain veterans disabled by service-connected PTSD who need VA benefits as soon as possible to compensate for loss in wage-earning capacity. For the foregoing reasons, the Secretary of Veterans Affairs is issuing this rule as an interim final rule. The Secretary of Veterans Affairs will consider and address comments that are received within 30 days of the date this interim final rule is published in the
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521).
The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This interim final rule will not affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this interim final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy implications of this interim final rule have been examined, and it has been determined not to be a significant regulatory action under the Executive Order.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This interim final rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.109, Veterans Compensation for Service-Connected Disability and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 U.S.C. 501(a), unless otherwise noted.
The revisions and addition read as follows:
(f)
(1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a revision to the Virginia State Implementation Plan (SIP). This revision moves the Richmond and Hampton Roads 8-Hour Ozone Nonattainment Areas from the nonattainment areas list to the maintenance areas list. EPA is approving this revision to move the Richmond and Hampton Roads 8-Hour Ozone Nonattainment Areas from the list of nonattainment areas to the list of maintenance areas in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on December 29, 2008 without further notice, unless EPA receives adverse written comment by November 28, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2008–0656 by one of the following methods:
A.
B.
C.
D.
Patrick Egan, (215) 814–3167, or by e-mail at
On April 15, 2004, the Richmond and the Hampton Roads Areas were designated as nonattainment areas for the 8-Hour Ozone National Ambient Air Quality Standards (NAAQS). On September 20, 2006, Virginia Department of Environmental Quality (VADEQ) formally submitted a redesignation request for the Richmond Area along with a maintenance plan on September 25, 2006. On October 16, 2006, VADEQ formally submitted a redesignation request for the Hampton Roads Area, along with a maintenance plan on October 18, 2006. On June 1, 2007, (72 FR 30485 & 72 FR 30490) EPA published final rulemaking actions approving the redesignation request and maintenance plan for the Richmond and Hampton Roads Areas. On July 6, 2007, (72 FR 32895), EPA published a correction notice for the June 1, 2007 (72 FR 30490)
On July 29, 2008, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of a regulatory change that moves the Richmond Area 8-Hour Ozone Nonattainment Area (Counties of Charles City, Chesterfield, Hanover, Henrico, and Prince George; Cities of Colonial Heights, Hopewell, Petersburg, and Richmond) and the Hampton Roads 8-Hour Ozone Nonattainment Area (Counties of Gloucester, Isle of Wight, James City and York; Cities of Chesapeake, Hampton, Newport News, Portsmouth, Poquson, Norfolk, Suffolk, Virginia Beach and Williamsburg) from the list of nonattainment areas found in regulation 9 VAC 5–20–204 to the list of maintenance areas found in regulation 9 VAC 5–20–203.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998, opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the Commonwealth's revision to move the Richmond and Hampton Roads Area from 8-hour ozone nonattainment list to the 8-hour ozone maintenance list. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 29, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is approving a request submitted by the Illinois Environmental Protection Agency (IEPA) on January 24, 2008, to revise the Illinois State Implementation Plan (SIP) for volatile organic compounds (VOC). The approval revises the Illinois SIP by updating information regarding the packaging production facility of Cromwell-Phoenix, Incorporated, located in Alsip, Illinois. It acknowledges that the source has changed its name from Cromwell-Phoenix, Incorporated, to CP–D Acquisition Company, LLC, as a consequence of a change in ownership. The revision does not change any of the VOC control requirements and will not increase VOC emissions because no emission limits were increased.
This rule is effective on December 29, 2008, unless EPA receives adverse written comments by November 28, 2008. If EPA receives adverse comments, EPA will publish a timely withdrawal of the rule in the
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2008–0198 by one of the following methods:
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Charles Hatten, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6031,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This action only applies to the CP–D Acquisition Company, LLC, packaging production facility located in Alsip, Illinois (Cook County).
The State has requested that EPA approve as a revision to the Illinois SIP the change in the source name from Cromwell-Phoenix, Inc. (Cromwell), to CP–D Acquisition Company, LLC (CP–D Acquisition).
On September 18, 2003, the Opinion and Order of the Illinois Pollution Control Board (IPCB), AS 03–05, adopted the amendments to the paper coating rules in 35 Illinois Administrative Code (IAC) 218.204(c) for Cromwell's Alsip packaging production facility, subject to conditions and alternate requirements for this facility. The IEPA held a public hearing on this SIP amendment on August 7, 2003.
At the time the IPCB issued this Order, Cromwell was going through a name change. On November 7, 2003, Cromwell and CP–D Acquisition filed a joint motion to re-open Opinion and Order, AS 03–05, which granted Cromwell an adjusted standard from 35 IAC 218.204(c). Because the assets and ownership would not change, the IPCB re-opened the docket to re-issue the Opinion and Order, AS 03–05, granting the adjusted standard in the name of CP–D Acquisition. Therefore, under the Opinion and Order, AS 03–05, adopted on November 20, 2003, the IPCB transferred all of the requirements applicable to the operating assets of Cromwell to CP–D Acquisition. The revision does not change any of the control requirements and will not increase VOC emissions because no emission limits were increased relative to the adjusted standard approved by the EPA on December 13, 2007, and relative to other applicable VOC emission limits contained in the Illinois SIP. See 72 FR 70804, dated December 13, 2007.
The revision to the Illinois SIP is solely an administrative change to reference the new name of the packaging production facility from Cromwell to CP–D Acquisition Company, LLC.
We are approving a revision to the Illinois SIP to change the source name of the packaging production facility from Cromwell-Phoenix, Incorporated, to CP-D Acquisition Company, LLC.
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 29, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(183) On January 24, 2008, the Illinois Environmental Protection Agency submitted a revision to its state implementation plan for the packaging production facility of CP–D Acquisition Company, LLC. The revision changes the source name from Cromwell-Phoenix, Incorporated, to CP–D Acquisition Company, LLC.
(i) Incorporation by reference.
(A) November 20, 2003, Supplemental Opinion and Order of the Illinois Pollution Control Board, AS 03–05, effective November 20, 2003.
Environmental Protection Agency (EPA).
Final rule.
With this final rule, EPA is amending the pesticide container and containment regulations, which provide for the safe storage and disposal of pesticides as a means of protecting human health and the environment pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This final rule extends the labeling compliance date from August 17, 2009 to August 17, 2010; changes the phrase “sold or distributed” to “released for shipment” as associated with all of the compliance dates; provides certain exceptions to label language requirements; allows for waivers of certain label requirements; and makes various minor editorial changes. In addition, the Agency is amending 40 CFR part 152 by establishing a definition for “released for shipment.”
This final rule is effective December 29, 2008.
EPA has established a docket for this action under docket identification (ID) number EPA–HQ–OPP–2005–0327. All documents in the docket are listed in the docket index available at
Jeanne Kasai, Field and External Affairs
You may be potentially affected by this action if you are a pesticide formulator, agrichemical dealer, an independent commercial applicator, or a custom blender. Potentially affected entities may include, but are not limited to:
• Pesticide formulators (NAICS code 32532), e.g., establishments that formulate and prepare insecticides, fungicides, herbicides or other pesticides from technical chemicals or concentrates produced by pesticide manufacturing establishments.
• Agrichemical dealers (NAICS code 44422), e.g., retail dealers that distribute or sell pesticides to agricultural users.
• Independent commercial applicators (NAICS code 115112), e.g., businesses that apply pesticides for compensation (by aerial and/or ground application) and that are not affiliated with agrichemical dealers.
• Custom blenders (NAICS code 44422), e.g., establishments that provide the service of mixing pesticides to a customer's specification (most custom blenders are also dealers).
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 Units II.D., III., V.B., VI.C., VII.B., VIII.C., and IX.A. of the preamble to the final pesticide container and containment rule, 71 FR 47330 (August 16, 2006). If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
On June 11, 2008, EPA published the “Pesticide Management and Disposal; Standards for Pesticide Containers and Containment: Proposed Amendments.” (73 FR 33035). In that proposal, EPA proposed a number of revisions to the existing container and containment regulations, which had been finalized in August 2006 (71 FR 47330). The container and containment regulations include requirements for pesticide container design; procedures, standards, and label language to facilitate removal of pesticides from containers prior to their being used, recycled, or discarded; requirements for containment of pesticides in stationary containers; and procedures for container refilling operations.
The public comment period for the NPRM closed on July 11, 2008. EPA received nine comments from trade associations and a consultant. All comments were generally in favor of the changes, with several suggestions for additional revisions to the container and containment regulations.
With this final rule, EPA is amending the container and containment regulations by extending the labeling compliance date from August 17, 2009 to August 17, 2010; changing the phrase “sold or distributed” to “released for shipment” as associated with all of the compliance dates; providing certain exceptions to label language requirements; allowing for waivers of certain label requirements; and making various minor editorial changes. In addition, the Agency is amending 40 CFR part 152 by establishing a definition for “released for shipment.”
These final regulations are issued pursuant to the authority given the Administrator of EPA in sections 2 through 34 of FIFRA, 7 U.S.C. 136—136y. Sections 19(e) and (f) of FIFRA, 7 U.S.C. 136a(e) and (f), grant EPA broad authority to establish standards and procedures to assure the safe use, reuse, storage, and disposal of pesticide containers. FIFRA section 19(e) requires EPA to promulgate regulations for the design of pesticide containers that will promote the safe storage and disposal of pesticides. FIFRA section 19(f) requires EPA to promulgate regulations prescribing procedures and standards for the removal of pesticides from containers prior to disposal. FIFRA section 25(a), 7 U.S.C. 136w(a), authorizes EPA to issue regulations to carry out provisions of FIFRA.
The Agency is amending § 152.3 by adding a new definition for “released for shipment” and is amending § 156.159, § 165.20, § 165.40, and § 165.60 to rely on this term. The proposed definition was as follows:
A product is released for shipment when the producer has packaged and labeled it in the manner in which it will be shipped, or has stored it in an area where finished products are ordinarily held for shipment. An individual product is only released for shipment once, except where subsequent events constitute production (e.g., relabeling, repackaging).
Eight commenters expressed support for adding a definition of “released for shipment.” Several commenters suggested changes to the definition for clarification. In particular, commenters said that it was confusing whether a product had to satisfy either one of the two conditions (“1. Packaged and labeled” or “2. Stored in an area held for shipment”) or both conditions to be considered “released for shipment.” Another commenter indicated that the definition could be interpreted to mean that a product could be released for shipment a second time. One commenter suggested adding language to the definition so that the producer would have to identify whether a product was not yet released for shipment.
The Agency's intent was that either one of the conditions in the first sentence of the definition would have to be satisfied in order to be “released for shipment.” A product that is “packaged and labeled in a manner in which it will be distributed or sold” is reasonably considered to be “released for shipment.” Likewise, a product stored in an area where finished products are ordinarily held for shipment is also reasonably considered to be “released for shipment.” EPA is keeping the definition as “packaged and labeled in a manner in which it will be distributed or sold, or stored in an area where finished products are ordinarily held for shipment” so that inspectors can take product samples, for enforcement purposes, under either condition. For example, if the definition required both conditions for a product to be considered “released for shipment,” inspectors might not be authorized to collect samples from a loading dock or in transit, as they would not necessarily be “stored in an area where products are ordinarily held for shipment.” Conversely, inspectors might not be able to collect samples of mislabeled products even if they were stored in an
In the final rule, EPA changed the first condition from “packaged and labeled in the manner in which it will be shipped” to “packaged and labeled in the manner in which it will be distributed or sold” to make it clear that inspectors may collect samples of products in their final retail packaging, rather than limiting them to collecting products in shipping boxes, shrink-wrapped pallet loads, etc.
However, EPA is modifying the proposed definition as suggested by one commenter to allow that products not considered ready for shipment may be stored in an area where finished products are ordinarily held for shipment, provided that they are physically separated from products that are intended to be released for shipment and are marked as not yet released for shipment. The Agency is using the term “marked” instead of “identified” as suggested by the commenter to signify a tangible, physical indication apparent to workers and inspectors that the particular products are not released for shipment. A mere verbal instruction not to release certain products is not sufficient.
Also, EPA has revised the proposed definition to clarify that the term “released for shipment” refers to the earliest point in time that a product could be said to enter into commerce, and that the product remains in the condition of “released for shipment” through all subsequent distributions or sales, unless the pesticide product is consumed through the production of a new pesticide product. Thus, a product does not cease to be “released for shipment” as it moves through its distribution chain to the end user. In the context of FIFRA, an individual product is only “released for shipment” once, except where subsequent activities such as relabeling or repackaging, constitute production of a new pesticide product. To emphasize this point, EPA has replaced “is released for shipment” with “becomes released for shipment” in the final definition for “released for shipment” in § 152.3 which reads as follows:
A product becomes released for shipment when the producer has packaged and labeled it in the manner in which it will be distributed or sold, or has stored it in an area where finished products are ordinarily held for shipment. Products stored in an area where finished products are ordinarily held for shipment, but which are not intended to be released for shipment must be physically separated and marked as not yet released for shipment. Once a product becomes released for shipment, the product remains in the condition of being released for shipment unless subsequent activities, such as relabeling or repackaging, constitute production.
One commenter suggested that a sentence be added to clarify that the term “released for shipment” is not intended to have the same meaning as “distribute or sell.” It is true that it is not the Agency's intention that the terms “released for shipment” and “distribute or sell” have the same meaning. This clarification is being provided here and may be included in guidance documents, but will not be added to the definition in the regulatory text.
The Agency also asked for comment on the placement of the definition in parts 156 and 165 of the regulations. Two commenters were in favor of placing the definition of “released for shipment” in parts 156 and 165 of the regulations citing the potential for confusion with the definition of “distribute or sell” in § 152.3. These commenters also requested that language be added to clarify that for the purposes of implementing the container labeling requirements, “released for shipment” is not intended to have the same meaning as “distribute or sell.” The Agency has decided that the above definition is appropriate in the context of the definition of “distribute or sell” in § 152.3, and for all purposes under FIFRA. Accordingly, EPA is adding the definition of “released for shipment” to the generally applicable definitions in § 152.3, rather than placing it in the definition sections specific to parts 156 and 165. This revision does not give the term “released for shipment” a meaning identical to “distribute or sell”. “Released for shipment” has a more narrow definition, and is part, but not the whole, of the term “distribute or sell.”
The Agency is amending 40 CFR part 156 by adding a new definitions section, § 156.3, consisting of introductory text, a new definition for “dilutable” and the existing definition from § 165.3 of “transport vehicle”; in § 156.140(a) by changing the phrase “in this section” to read “of this section.”; in §§ 156.140(a)(5), (d), and (e) by exempting certain container types from container type label statements; in § 156.140(c), by providing a mechanism whereby the Agency can approve modifications to the container type label language on a case-by-case basis; in §§ 156.144(e), (f) and (g) by exempting certain pesticide product container types from the residue removal label requirements; in §§ 156.140(a) and (b) and § 156.144(a) by revising the introductory paragraphs to account for the new exemptions, and in § 156.159 by extending the compliance date by a year, and changing the phrase “distributed or sold” to “released for shipment” as associated with the compliance date.
The rest of this unit describes the comments on the proposed changes to 40 CFR part 156 and any changes EPA made to the proposed language in response to public comments. Unless otherwise indicated, EPA is adopting the changes as proposed.
The Agency proposed adding a new definitions section at § 156.3, consisting of introductory text and a definition for “dilutable.” One commenter supported the proposed definition of “dilutable.” Another commenter pointed out that EPA proposed an exemption for transport vehicles in § 156.144(g) but only defines “transport vehicle” in § 165.3. To facilitate the understanding of the use of the term “transport vehicle” in 40 CFR part 156 subpart H, EPA will include the definition of “transport vehicle” in 40 CFR part 156 as well. Therefore, the Agency is adopting the proposed § 156.3, including the definition for “dilutable” and adding the definition for “transport vehicle” from § 165.3. In addition, EPA is making an editorial change to the second sentence of the introductory paragraph to improve clarity. In particular, EPA is changing the phrase “the following terms shall apply” to “the following terms shall have the meanings set forth below.”
The Agency proposed to create a list (in § 156.140(a)(5)) of nonrefillable container types exempt from the “identification of container type” labeling requirements that identify the container as nonrefillable (§ 156.140(a)(1)) and prohibit or limit its reuse (§ 156.140(a)(2)). The Agency also proposed a provision in § 156.140(c) that would allow waivers and modifications of any of the “container
Seven commenters were in support of adding a list of container types exempt from the nonrefillable container type and reuse statements. A few commenters suggested that, instead of having a long list of exempt container types, the Agency should exempt package types through guidance documents, a Pesticide Registration Notice, or the EPA's web site. The Agency has decided to keep a list in the rule (in § 156.140(a)(5)) of container types that are exempt from the nonrefillable container type and reuse statements. The Agency intends to maintain on the EPA pesticide program web site (
EPA is also making two editorial changes to the proposed introductory text of § 156.140(a)(5) to improve clarity. Specifically, EPA is changing the phrase “in the following nonrefillable containers” to read “in the following types of nonrefillable containers, and their packaging” and the phrase “in this section” to read “of this section.”
Four commenters suggested changes and additions to the container types that were proposed to be exempt from the requirements to have “Nonrefillable container” and reuse statements on their labels.
One commenter requested that the Agency specifically exempt products in polyethylene sleeve packages whose contents would need to be mixed with water. The commenter explained that the product user fills a container (such as a bucket) with water, opens a portion control packet and empties the entire contents into the water in the container. The portion control packet is not designed to be resealed and it does not appear likely to be reused. Although EPA considers this container type within the scope of the existing exemption for “any package destroyed by the use of the product contained,” the commenter asked EPA to specifically exempt this container type for clarity. The Agency has identified the rodenticide placepack as a similar type of product, in that it is also a portion control packet and in packaging destroyed by use of the product contained.
The Agency believes that one-time use portion control packets are sufficiently common that a specific exemption may assist the regulated community, even if not strictly necessary. Therefore, the Agency is exempting “one-time use portion control packets, such as polyethylene sleeve packages or rodenticide placepacks” from the nonrefillable container type and reuse statements in the final rule by adding this container type to the list of exempt container types in § 156.140(a)(5).
One commenter suggested that the proposed list lacks a major segment of bait station containers. This commenter suggested adding language to include “prefilled, non-refillable ant, roach and termite insecticide bait stations not intended to be opened or activated in a manner that exposes the contents to human contact” which includes any child-resistant bait station. Another commenter suggested that the term “tamper-resistant bait station” is generally used for rodent control products while “child resistant packaging” is generally used for insecticide bait stations. Therefore, the commenter suggested changing “tamper-resistant bait stations” to “tamper-resistant insecticide and rodenticide bait stations.”
The Agency has decided to change “tamper-resistant bait stations” to “one-time use bait stations.” One-time use bait stations more clearly describes the category of products EPA intended to exempt: bait stations for any pest that are not designed to be refilled and usually cannot be opened without causing significant damage to them. Distinctions between tamper-resistant and child-resistant packaging, or between target pests, are not relevant to this exemption. “Tamper-resistant cages for repellent or trapping strips” is also being changed to “one-time use cages for repellent or trapping strips” for the same reasons.
For consistency, EPA is also changing the phrases “nonrefillable” and “single use” to “one-time use” in the description of other container types in § 156.140(a)(5). For clarity, EPA is also changing the last phrase in the description of caulking tubes and other squeezable tubes from “for paste, gel, or other similar formulas” to “for paste, gel, or other similar substances.”
Shortly after the comment period, EPA received questions that highlighted other container types that could also be considered inherently nonrefillable. First, devices are exempt from registration under FIFRA section 3, but are subject to some of the requirements set forth in FIFRA and 40 CFR (per 40 CFR 152.500), including the label requirements in 40 CFR part 156. The labeling requirements added to 40 CFR part 156 by the container and containment rule were primarily intended to address the risks of chemical residues in containers, and generally are not relevant to devices. Second, another commenter pointed out that cattle ear tags are similar to pet flea and tick collars and therefore they should also be exempted from the requirements in §§ 156.140(a)(1) and (a)(2). For both types of products, the plastic matrix releases a pesticide active ingredient over time while on the animal and cannot be reused or “reloaded” with the pesticide active ingredient. Although these two comments were not submitted on time, EPA agrees that these products should be exempted from the labeling requirements to identify a container as a nonrefillable container and a reuse statement. Accordingly, EPA is exempting devices and “animal ear tags, such as cattle ear tags” from §§ 156.140(a)(1) and (a)(2). EPA is exempting “animal ear tags, such as cattle ear tags” so that the same exemption will apply in similar situations for other animals.
Therefore, EPA is revising proposed § 156.140(a)(5) to exempt pesticide products in the following container types, and their packaging, from the requirements to have statements on the label regarding “Nonrefillable containers” in § 156.140(a)(1) and “reuse” in § 156.140(a)(2):
• Aerosol cans;
• Devices as defined in 40 CFR 152.500;
• One-time use caulking tubes and other one-time use squeezable tube containers for paste, gel, or other similar substances (e.g., crack and crevice application devices, unit dose application tubes);
• Foil packets for water soluble packaging, repellent wipes, and other one-time use products;
• One-time use portion control packets, such as polyethylene sleeve packages or rodenticide placepacks;
• One-time use bait stations;
• One-time use cages for repellent or trapping strips;
• Pet collars or animal ear tags, such as cattle ear tags;
• One-time use semiochemical dispersion devices;
• Any container that is destroyed by the use of the product contained; and
• Any container that would be destroyed if reuse of the container were attempted (for example, bacteriostatic water filter cartridges, blister cards, etc).
The Agency notes that for products described in the list above, the label may be on the container itself, on outer packaging, or both. The Agency believes
EPA also notes that by specifying in § 156.140(a)(5) certain products as “one-time use” the Agency does not intend to suggest that other exempted products are not required to be one-time use products. All products that are eligible for the § 156.140(a)(5) exemption must be one-time use containers (as the § 165.3 definition of nonrefillable container specifies that they be “designed and constructed for one-time use”). For most products exempted by § 156.140(a)(5) (e.g., aerosol cans, packaging destroyed by use), restating the one-time use limitation would serve no purpose. However, for products where both one-time use and multiple use versions are common (i.e., bait stations, cages and semiochemical dispersion devices), EPA has included the “one-time use” designation as a reminder for persons subject to these regulations. Lastly, EPA is changing the introductory sentence in § 156.140(a)(5) as proposed from “
Also, the Agency did not propose to automatically exempt these container types from the requirement to have a statement about recycling/reconditioning because the Agency wants to facilitate recycling wherever feasible. One commenter had a different opinion and remarked that a label statement encouraging recycling could conflict with the requirements of local recycling programs, noting that aerosol containers are not accepted by many recycling programs. EPA is aware of some local recycling programs that are designed to accept aerosol containers, and EPA believes that recycling programs generally are expanding and that it is important to encourage recycling where available. Moreover, the recycling statements in § 156.140(a)(3) take availability of a recycling program into account, such as “Offer for recycling if available.” Finally, as discussed below, registrants will now have the option of applying for a waiver from the recycling label statement requirement if recycling is not appropriate for a specific container or product. For these reasons, the Agency has decided not to automatically exempt these containers from the recycling/reconditioning statement.
In § 156.140(b), EPA is finalizing the proposed changes and one additional change suggested by a commenter. To improve clarity, EPA is changing the beginning of the second sentence from “If placed on the label, it must be...” to “If placed on the label, the statement must be...”
In § 156.140(c), the Agency proposed to add a new paragraph that would allow EPA, on a case-by-case basis, to modify or waive any of the label statements required by § 156.140. This paragraph is being added to § 156.140(c) as proposed. One commenter suggested exempting package types through guidance documents or making the “nonrefillable container” statement optional for certain package types because of the burden to request waivers and the Agency to review waivers. Another commenter suggested keeping a list through a Pesticide Registration Notice or on EPA's web site so that repeat requests would not have to be made on the same container types. Lastly, another commenter supported the modification/waiver provision as long as it was in addition to the list of exempt product container types in 40 CFR 156.140(a)(5). The Agency intends to maintain on the EPA pesticide program web site (
In § 156.140(d), the Agency proposed to exempt from the label statements required in § 156.140, pesticide-impregnated clothing or other repellent-impregnated objects that are registered as pesticides and are not packaged in a container. One commenter requested that this exemption be expanded to all objects registered as pesticide products but not packaged in a container. The commenter explained that there are objects registered as a pesticide that are not “pesticide-impregnated” and, with technology advancing, there will be innovations in pesticide delivery systems. One example given was EPA's registration of copper alloy as an antimicrobial pesticide that can be fabricated into objects such as hospital bed railings. The commenter maintained that the same considerations the Agency is giving to repellent-impregnated fabric objects should apply to copper alloy as well as other future objects. Another commenter recommended an editorial change that would generally exempt “repellent-impregnated fabric objects” while giving clothing, tents or mosquito netting as examples.
Based on these comments, EPA reconsidered the exemption for pesticide-impregnated objects that are registered as pesticides and are not packaged in a container as proposed. Upon re-evaluation, EPA believes that it is more appropriate to revise this paragraph to exempt pesticidal articles from all of the label statements required by § 156.140. Note that while § 152.25(a) exempts from all requirements of FIFRA certain articles treated with a pesticide to protect the article itself, this new § 156.140(d) provides a more narrow exception to a broader class of articles. As discussed above for devices, the container and containment labeling requirements in 40 CFR part 156 were primarily intended to address the handling of chemical residues in containers. The Agency expects that any packaging or shipping containers for pesticidal articles would have minimal chemical residues, so it is not necessary or appropriate for the labels of these pesticides to have the same container handling statements. EPA believes that the specific pesticide products that were identified in the proposed exemption, including repellent-impregnated clothing and other repellent-impregnated fabric articles, such as tents or mosquito netting, are also exempted by the exemption for pesticidal articles in § 156.140(d).
This new exemption complements the existing exemption in § 152.25(a) in that it addresses pesticidal articles that do not qualify for the § 152.25(a) exemption. Section 152.25(a) provides a complete exemption from all requirements of FIFRA for qualifying
EPA acknowledges that there are likely to be situations where the identification of container type label statements would not be appropriate for a specific pesticide, such as objects registered as pesticide products but not packaged in a container, as described by the commenter. Some of these situations may be covered by the exemption for pesticidal articles in § 156.140(d). However, some of the pesticide products identified by the commenter may not be exempted by § 156.140(d). Because EPA expects that the number of these situations is small, EPA believes that they can be handled effectively by the modification/waiver provision in § 156.140(c) and through the pesticide registration process.
Shortly after the comment period, EPA received a question about why transport vehicles were not proposed to be exempted from the refillable container type statements in § 156.140(b) similar to the proposal to exempt transport vehicles from the residue removal label statements. The commenter pointed out that the same logic applies to the refillable container type statement and the residue removal requirement – that the label language is not tailored to the unique nature of transport vehicle containers. EPA agrees that transport vehicles are generally intended to be refilled with other pesticides or other chemicals so it does not make sense for the labels of pesticides that are distributed only in transport vehicles to include the statement “Refillable container. Refill this container with pesticide [or common chemical name] only. Do not reuse this container for any other purpose.” Therefore, EPA is adding a new exemption in § 156.140(e) that exempts transport vehicles from the requirements in that section.
As proposed, EPA is adding three exemptions from the residue removal instruction requirements in § 156.144. EPA has modified the proposed exemption for compressed gas cylinders to eliminate unneeded language about container types. In its final form, the exemption from the residue removal instruction requirements applies to all pesticides that are gases, regardless of container shape. EPA believes that this improves the clarity and covers all of the containers, including compressed gas cylinders that were covered by the proposed exemption.
In § 156.144(f), the Agency also proposed to exempt pesticide-impregnated objects that are registered as pesticides (and not packaged in a container) from the residue removal requirements. The Agency is revising the exemption in § 156.144(f) in the same way as in § 156.140(d), for the reasons discussed above.
EPA revised the exemption for transport vehicles in § 156.144(g) for clarity and to be consistent with the format in § 156.140(e) and the other exemptions in § 156.144. In addition, it is no longer appropriate to include the parenthetical example of a transport vehicle because the full definition of transport vehicle is being added to § 156.3. EPA believes that the transport vehicle exemption in the final rule has the same effect as the proposed exemption, but is more straightforward and easier to understand.
The Agency proposed changing the compliance date in § 156.159 for labeling requirements, from August 17, 2009 to August 17, 2010, and replacing the phrase “distributed or sold” with “released for shipment.” Section 156.159 was proposed to read:
As of August 17, 2010, all pesticide products released for shipment by a registrant must have labels that comply with §§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140, 156.144, 156.146, and 156.156.
Any pesticide product released for shipment by a registrant after August 16, 2010 must bear a label that complies with §§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140, 156.144, 156.146, and 156.156.
EPA proposed a number of changes to the container and containment regulations in part 165 to provide clarification and to correct editorial and other errors. Unless otherwise indicated, EPA is adopting the changes as proposed.
For consistency, the Agency is changing the proposed introductory language “In addition, as used in this part, the following terms shall apply.” by replacing the term “apply” with the phrase “have the meanings set forth below.” In addition to adopting the proposed changes to the definitions in 165.3, the Agency is making editorial changes by renaming “Pesticide compatible” as applied to containment as “Pesticide compatible as applied to containment” and “Pesticide compatible” as applied to containers as “Pesticide compatible as applied to containers.” The Agency is making
EPA is adopting the language as proposed with one minor revision suggested by a commenter, by replacing the word “capacity” with “capability” to avoid confusion with the new definition of “capacity.”
The Agency proposed to use the existing definition for “flowable concentrate” but rename it as “suspension concentrate” as suggested by stakeholders. The proposed definition for “suspension concentrate” was “...a stable suspension of active ingredients in a liquid intended for dilution with water before use.” A commenter pointed out that as written, it could include capsule suspension (microencapsulated) as well as flowable concentrates, but to apply only to flowable concentrates it should read “...a stable suspension of solid particulate active ingredients...” The Agency is making this change as suggested because rinsing data shows that microencapsulated formulations are not as difficult to remove as stable suspensions of solid particulate active ingredients. Also, “flowable concentrate” is being replaced with “suspension concentrate” in § § 165.25(f)(2) and 165.27(b)(5).
The Agency is changing the following existing definitions in § 165.3 as suggested by a commenter: “dry pesticide,” “nonrefillable container,” “rinsate,” and “washwater.”
The original definition of “dry pesticide” was “...any pesticide that is in solid form and that has not been combined with liquids; this includes formulations such as dusts, wettable powders, dry flowable powders, granules, and dry baits.” The list is being changed by replacing “dry flowable powders” with “dry flowables” and by adding “water-soluble powders.” A commenter explained that pesticide formulations described as “dry flowable” are formulated into small granules, not powder. “Water-soluble powders” is being added to the list because it is an example of a dry pesticide.
The original definition of “nonrefillable container” provided, in part, that they be “for one time containment of a pesticide for sale or distribution.” A commenter suggested that the term “containment” was used inappropriately in this definition because “containment” is used elsewhere in the container and containment rule to refer to various structures intended to contain spills, washwater, etc. To avoid any confusion, EPA is amending the definition for “nonrefillable container” by replacing “one time containment of a pesticide for sale or distribution.” with “one-time use and is not intended to be filled again with a pesticide for sale or distribution.”
The original definition of “rinsate” was “...the liquid produced from the rinsing of the interior of any equipment or container that has come in direct contact with any pesticide.” The Agency is amending the definition to replace “produced” with “resulting” to avoid any confusion with the definition of “produced” as defined in FIFRA. Similarly, the original definition of “washwater” was “...the liquid produced from the rinsing of the exterior of any equipment or containers that have or may have come in direct contact with any pesticide or system maintenance compound.” The Agency is also amending the definition of “washwater” by replacing “produced” with “resulting,” and by adding examples of such liquids (i.e., such as oil or antifreeze).
The Agency is changing the language associated with the compliance date in § 165.20(c), § 165.40(c), and § 165.60(c) to be consistent with the revision in § 156.159, for the reasons discussed above. In addition, the Agency is changing the compliance date in § 165.40(c), and § 165.60(c) so that they all read “...after August 16,...” regardless of the year. The Agency is correcting errors in §§ 165.25(a), 165.25(b)(1), and 165.25(b)(2), as proposed, as well as in § 165.45(b)(2) by changing “part 107 subpart B” to read “49 CFR part 107 subpart B.”
A commenter suggested that EPA provide a more detailed reference for the EPA test procedure “Rinsing Procedures for Dilutable Pesticide Products in Rigid Containers” cited in § 165.25(f)(1). The Agency considered this suggestion, but decided not to revise the regulatory text because the protocol is readily available. It is in the docket for the final rule and the Agency intends to keep it posted on the EPA pesticide program web site (
In addition to making these changes, EPA is making several changes in 40 CFR part 165 in response to a commenter. Those changes are: inserting the specific regulations referenced (49 CFR parts 171-180) in § 165.45(e) and adding “or” as in “equal to or greater than” in § 165.45 (f). As suggested by a commenter, for consistency EPA is replacing “stationary liquid pesticide container,” with “stationary container of liquid pesticides,” “stationary dry pesticide container” with “stationary container of dry pesticides,” “stationary liquid pesticide containment” with “secondary containment units for stationary containers of liquid pesticides,” and “stationary dry pesticide containment” with “secondary containment units for stationary containers of dry pesticides” in § 165.45(f); § 165.85(c), (d) and (f); and § 165.87(c), (d) and (f).
EPA is changing slightly the wording of § 165.60(c) as proposed. The phrase “must have been repackaged” is changed to read “must be repackaged.” This change is being made for clarity since § 165.60 contains the general provisions of Subpart D – Standards for Repackaging Pesticide Products into Refillable Containers.
EPA is making minor editorial changes in § 165.67(d) and § 165.70(e)(5)(i) by replacing the word “referenced” with the word “referred to.” EPA is correcting a mistake made in proposed § 165.85(a)(3) and 165.87(a)(3) where the word “able” had been omitted in the proposed language the phrase “compatible means to withstand” is corrected to read “compatible means able to withstand.”
In discussions with stakeholders, EPA was asked to consider a change to § 165.90(a)(5). The Agency's intention of requiring lockable valves on stationary pesticide containers (if required by § 165.45(f)) was to mitigate the risks associated with vandalism and theft. The Agency agrees with stakeholders that locking the entrances to the facility when it is unattended would achieve the same purpose. Therefore, the EPA is amending § 165.90(a)(5) to state that, when lockable valves are required, the owner or operator of a facility must ensure that the lockable valves on stationary containers are locked or that the facility itself is locked, whenever the facility is unattended.
EPA has also decided to amend § 165.90(b)(2) to expressly include weather among the factors relevant to determining whether repairs are completed “within a time frame that is reasonable.” EPA has always understood that weather affects operators' ability to seal cracks and gaps in a containment structure or appurtenances, and is making this explicit in the regulation.
EPA prepared two Economic Analyses (EAs) of the potential costs and benefits associated with the August 16, 2006, Container and Containment Rule, one for the container requirements and another for the containment requirements. The EAs, entitled “Economic Analysis of the Pesticide Container Design and Residue Removal Standards” and “Economic Analysis of the Bulk Pesticide Containment Structure Regulations,” are available in the docket for the pesticide container and containment rule at
EPA estimated the total annual cost of the August 16, 2006, Container and Containment Rule to be $11.3 million ($8.37 million for containers plus $2.93 million for containment) and the total annual benefits from the final rule to be $17 to $23.4 million. When the estimated cost of the August 16, 2006, rule is adjusted to consider the amendments being finalized, there is an annual cost reduction of approximately $0.23 to $0.32 million due to a reduction in the number of labels that would need to be revised. There is no difference in the total annual benefits from the August 16, 2006 rule.
In accordance with FIFRA section 25(a), the Agency submitted a draft of this final rule to the Committee on Agriculture in the House of Representatives, the Committee on Agriculture, Nutrition, and Forestry in the United States Senate, and the FIFRA Scientific Advisory Panel (SAP). The SAP and the Secretary of Agriculture waived review of this final rule.
Under Executive Order 12866, entitled
This action does not impose any new information collection burden or activities requiring approval under the Paperwork Reduction Act, 44 U.S.C. 3501
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined in accordance with the RFA as: (1) A small business as defined by 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.
Based on the industry profiles that EPA prepared as part of the EAs for the 2006 rulemaking, EPA determined that the 2006 rulemaking was not expected to impact any small not-for-profit organizations or small governmental jurisdictions. Since this is an amendment to that rulemaking, EPA has determined that this determination also applies to this final rule. As such, “small entity” for purposes of the addendum EA prepared for this final rule, is synonymous with “small business.” Using the size standards established by the Small Business Administration, “small businesses” potentially impacted by this final rule are expected to include the same types of businesses described in the EAs prepared for the 2006 rulemaking. As indicated in those EAs, the small business size standard varies based on the primary NAICS code associated with the business. Specifically, the small businesses size standards vary from 100 or fewer workers (e.g., NAICS code 422910, Farm Suppliers Wholesalers) to 1,000 or fewer workers (e.g., NAICS code 325188, Inorganic Chemical Manufacturing), with the majority of small businesses having 500 or fewer workers (e.g., NAICS code 325320, Pesticide/Agricultural Chemical Manufacturing).
In general, EPA strives to minimize potential adverse impacts on small entities when developing regulations to achieve the environmental and human health protection goals of the statute and the Agency. EPA solicits comments specifically about potential small business impacts.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.
This 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 for the private sector in any one year. As explained in Unit VI., EPA estimates
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Because State, local, and tribal governments are rarely pesticide applicants or registrants, this rule is not expected to affect small governments.
Pursuant to Executive Order 13132, entitled
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). EPA has determined that this action does not have tribal implications because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. EPA is not aware of any tribal governments which are pesticide registrants, refillers or dealers storing large quantities of pesticides. Thus, Executive Order 13175 does not apply to this action.
Executive Order 13045, entitled
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards 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, business practices, etc.) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not impose any technical standards that would require Agency consideration of voluntary consensus standards.
Executive Order (EO) 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.
EPA has determined that this final 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. This final rule amends the existing container and containment regulations to extend the compliance date for the label changes, provide certain exemptions to label language requirements, and make changes to improve the clarity of the regulations. None of these changes affect the level of protection provided to human health or the environment by the container and containment regulations.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Labeling, Pesticides and pests.
Environmental protection, Packaging and containers, Containment structures, Pesticides and pests.
7 U.S.C. 136-136y; Subpart U is also issued under 31 U.S.C. 9701.
7 U.S.C. 136 through 136y.
Terms used in this part have the same meaning as in the Act and part 152 of this chapter. In addition, as used in this part, the following terms shall have the meanings set forth below.
(a)
(5)
(i) Aerosol cans.
(ii) Devices as defined in § 152.500 of this chapter.
(iii) One-time use caulking tubes and other one-time use squeezable tube containers for paste, gel, or other similar substances.
(iv) Foil packets for water soluble packaging, repellent wipes, and other one-time use products.
(v) One-time use portion control packets, such as polyethylene sleeve packages, or rodenticide placepacks.
(vi) One-time use bait stations.
(vii) One-time use cages for repellent or trapping strips.
(viii) Pet collars or animal ear tags, such as cattle ear tags.
(ix) One-time use semiochemical dispersion devices.
(x) Any container that is destroyed by the use of the product contained.
(xi) Any container that would be destroyed if reuse of the container were attempted.
(b)
(c)
(d)
(e)
(a)
(e)
(f)
(g)
Any pesticide product released for shipment by a registrant after August 16, 2010 must bear a label that complies with §§ 156.10(d)(7), 156.10(f), 156.10(i)(2)(ix), 156.140, 156.144, 156.146, and 156.156.
7 U.S.C. 136 through 136y.
Terms used in this part have the same meaning as in the Act and part 152 of this chapter. In addition, as used in this part, the following terms shall have the meanings set forth below.
(c)
(d)
(a)
(b)
(2) For the purposes of these regulations, a pesticide product that meets the definition of a hazardous material in 49 CFR 171.8 must be packaged in a nonrefillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR parts 171-180 or, if subject to a special permit, according to the applicable requirements of 49 CFR part 107 subpart B. The requirements in this paragraph apply to the pesticide product as it is packaged for transportation in commerce.
(f) * * *
(2) The test must be conducted only if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case by case basis.
(b)
(4) * * *
(iii) A copy of EPA's approval of a request for a waiver from the container dispensing requirement.
(5) At least one of the following records pertaining to the nonrefillable container residue removal requirement in § 165.25(f) if the pesticide product is a suspension concentrate or if EPA specifically requests the records on a case-by-case basis:
(iii) A copy of EPA's approval of a request for a waiver from the residue removal standard requirement.
(b) * * *
(3) If you are a refiller of a pesticide product and you are not a registrant of the pesticide product, § 165.45(a)(2) provides an exemption from some of the requirements in § 165.45(a)(1) .
(c)
(c)
(d)
(e)
(f)
(g)
(a) * * *
(1) A pesticide product that does not meet the definition of a hazardous material in 49 CFR 171.8 must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR 173.4, 173.5, 173.6, 173.24, 173.24a, 173.24b, 173.28, 173.155, 173.203, 173.213, 173.240(c), 173.240(d), 173.241(c), 173.241(d), part 178, and part 180 that are applicable to a Packing Group III material, or, if subject to a special permit, according to the applicable requirements of 49 CFR part 107 subpart B. The requirements in this paragraph apply to the pesticide product as it is packaged for transportation in commerce.
(b)
(2) For the purposes of these regulations, a pesticide product that meets the definition of a hazardous material in 49 CFR 171.8 must be packaged in a refillable container that, if portable, is designed, constructed, and marked to comply with the requirements of 49 CFR parts 171-180 or, if subject to a special permit, according to the applicable requirements of 49 CFR part 107 subpart B. The requirements in this paragraph apply to the pesticide product as it is packaged for transportation in commerce.
(e)
(f)
(2) Each stationary container of liquid pesticides must meet all of the following standards:
(i) Each stationary container of liquid pesticides must be equipped with a vent or other device designed to relieve
(ii) External sight gauges, which are pesticide-containing hoses or tubes that run vertically along the exterior of the container from the top to the bottom, are prohibited on stationary containers of liquid pesticides.
(iii) Each connection on a stationary container of liquid pesticides that is below the normal liquid level must be equipped with a shutoff valve which is capable of being locked closed. A shutoff valve must be located within a secondary containment unit if one is required by subpart E of this part.
(c)
(d) * * * (1) An antimicrobial swimming pool product that is not exempt by paragraph (a), (b), or (c) of this section must comply with all of the regulations in this subpart except for the following requirements:
(i) * * *
(2) * * *
(iii) The serial number or other identifying code of the refillable container.
(b) * * *
(2) * * *
(ii) The pesticide product is repackaged by a refilling establishment registered with EPA as required by § 167.20 of this chapter at the site of a user who intends to use or apply the product.
(d)
(b) * * *
(2) * * *
(ii) The pesticide product is repackaged by a refilling establishment registered with EPA as required by § 167.20 of this chapter at the site of a user who intends to use or apply the product.
(e) * * *
(5) * * *
(i) The written contract referred to in paragraph (b)(3) of this section from the pesticide product's registrant.
(j) * * *
(2) * * *
(iii) The serial number or other identifying code of the refillable container.
(b) ***
(1) Refilling establishments who repackage agricultural pesticides and whose principal business is retail sale (i.e., more than 50% of total annual revenue comes from retail operations).
(a) * * *
(3) The containment structure must be made of materials compatible with the pesticides stored. In this case, compatible means able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.
(c)
(1) New secondary containment units for stationary containers of liquid pesticides, if protected from precipitation, must have a capacity of at least 100 percent of the volume of the largest stationary pesticide container plus the volume displaced by other
(2) New secondary containment units for stationary containers of liquid pesticides, if exposed to or unprotected from precipitation, must have a capacity of at least 110 percent of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.
(d)
(f)
(1) The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.
(2) Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.
(3) The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.
(4) The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of 6 inches high that extends at least 2 feet beyond the perimeter of the container.
(a) * * *
(3) The containment structure must be made of materials compatible with the pesticides stored. In this case, compatible means able to withstand anticipated exposure to stored or transferred substances and still provide containment of those same or other substances within the containment area.
(c)
(1) Existing secondary containment units for stationary containers of liquid pesticides must have a capacity of at least 100 percent of the volume of the largest stationary pesticide container plus the volume displaced by other containers and appurtenances within the unit.
(d)
(f)
(1) The stationary containers of dry pesticides within the containment unit must be protected from wind and precipitation.
(2) Stationary containers of dry pesticides must be placed on pallets or a raised concrete platform to prevent the accumulation of water in or under the pesticide.
(3) The storage area for stationary containers of dry pesticides must include a floor that extends completely beneath the pallets or raised concrete platforms on which the stationary containers of dry pesticides must be stored.
(4) The storage area for stationary containers of dry pesticides must be enclosed by a curb a minimum of 6 inches high that extends at least 2 feet beyond the perimeter of the container.
(a) * * *
(2) Ensure that pesticide spills and leaks on or in any containment structure are collected and recovered in a manner that ensures protection of human health and the environment (including surface water and groundwater) and maximum practicable recovery of the pesticide spilled or leaked. Cleanup must occur no later than the end of the day on which pesticides have been spilled or leaked except in circumstances where a reasonable delay would significantly reduce the likelihood or severity of adverse effects to human health or the environment.
(5) Ensure that each lockable valve on a stationary pesticide container, if it is required by § 165.45(f), is closed and locked, or that the facility is locked, whenever the facility is unattended.
(b) * * *
(1) Inspect each stationary pesticide container and its appurtenances and each containment structure at least monthly during periods when pesticides are being stored or dispensed on the containment structure. Your inspection must look for visible signs of wetting, discoloration, blistering, bulging, corrosion, cracks or other signs of damage or leakage.
(2) Initiate repair to any areas showing visible signs of damage and seal any cracks and gaps in the containment structure or appurtenances with material compatible with the pesticide being stored or dispensed no later than the end of the day on which damage is noticed and complete repairs within a time frame that is reasonable, taking into account factors such as the weather, and the availability of cleanup materials, trained staff, and equipment.
(3) Not store any additional pesticide on a containment structure if the structure fails to meet the requirements of this subpart until suitable repairs have been made.
(b) * * *
(1) The State must submit a letter and any supporting documentation to EPA. Supporting documentation must demonstrate that the State's program is providing environmental protection equivalent to or more protective than that expected to be provided by the Federal regulations in this subpart.
Environmental Protection Agency (EPA).
Order.
In this Order, EPA denies a petition requesting that EPA revoke all pesticide tolerances for carbaryl under section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA). The petition was filed on January 10, 2005, by the Natural Resources Defense Council (NRDC).
This Order is effective October 29, 2008. Objections and requests for hearings must be received on or before December 29, 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–2008–0347. To access the electronic docket, go to
Christina Scheltema, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: 703–308–2201; e-mail address: scheltema.christina@epa.gov.
In this document, EPA denies a petition by the NRDC to revoke pesticide tolerances. This action may be of interest to agricultural producers, food manufacturers, or pesticide manufacturers. 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–2008–0347 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 December 29, 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 ADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA–HQ–OPP–2008–0347, by one of the following methods:
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The NRDC filed a petition dated January 10, 2005 with EPA which, among other things, requested that EPA revoke all tolerances for the pesticide carbaryl established under section 408 of the FFDCA, 21 U.S.C. 346a (Ref. 1) This Order denies that aspect of the petition that sought the revocation of the carbaryl tolerances. This Order also denies NRDC's petition to cancel carbaryl pet collar registrations submitted as part of NRDC's comments on the
Under section 408(d)(4) of the FFDCA, EPA is authorized to respond to a section 408(d) petition to revoke tolerances either by issuing a final rule revoking the tolerances, issuing a proposed rule, or issuing an order denying the petition. (21 U.S.C. 346a(d)(4)).
1.
EPA also regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), (7 U.S.C. 136 et seq). While the FFDCA authorizes the establishment of legal limits for pesticide residues in food, FIFRA requires the approval of pesticides prior to their sale and distribution, (7 U.S.C. 136a(a)), and establishes a registration regime for regulating the use of pesticides. FIFRA regulates pesticide use in conjunction with its registration scheme by requiring EPA review and approval of pesticide labels and specifying that use of a pesticide inconsistent with its label is a violation of federal law. (7 U.S.C. 136j(a)(2)(G)). In the FQPA, Congress integrated action under the two statutes by requiring that the safety standard under the FFDCA be used as a criterion in FIFRA registration actions as to pesticide uses which result in dietary risk from residues in or on food, (7 U.S.C. 136(bb)), and directing that EPA coordinate, to the extent practicable, revocations of tolerances with pesticide cancellations under FIFRA. (21 U.S.C. 346a(l)(1)).
2.
consider, among other relevant factors—...
(v) available information concerning the cumulative effects of such residues and other substances that have a common mechanism of toxicity; and
(vi) available information concerning the aggregate exposure levels of consumers (and major identifiable subgroups of consumers) to the pesticide chemical residue and to other related substances, including dietary exposure under the tolerance and all other tolerances in effect for the pesticide chemical residue, and exposure from other non-occupational sources;
EPA must also consider, in evaluating the safety of tolerances, “safety factors which . . . are generally recognized as appropriate for the use of animal experimentation data.” (21 U.S.C. 346a(b)(2)(D)(ix).
Risks to infants and children are given special consideration. Specifically, section 408(b)(2)(C) states that EPA:
shall assess the risk of the pesticide chemical based on—
(II) available information concerning the special susceptibility of infants and children to the pesticide chemical residues, including neurological differences between infants and children and adults, and effects of
(III) available information concerning the cumulative effects on infants and children of such residues and other substances that have a common mechanism of toxicity. ...
This provision also creates a presumptive additional safety factor for the protection of infants and children. Specifically, it directs that “[i]n the case of threshold effects, ... an additional tenfold margin of safety for the pesticide chemical residue and other sources of exposure shall be applied for infants and children to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children.” (21 U.S.C. 346a(b)(2)(C)). EPA is permitted to “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children.” (Id.). The additional safety margin for infants and children is referred to throughout this Order as the “FQPA Safety Factor.”
3.
Once EPA takes final action on the petition by establishing, amending, or revoking the tolerance or denying the petition, any party may file objections with EPA and seek an evidentiary hearing on those objections. (21 U.S.C. 346a(g)(2)). Objections and hearing requests must be filed within 60 days. (Id.). The statute provides that EPA shall “hold a public evidentiary hearing if and to the extent the Administrator determines that such a public hearing is necessary to receive factual evidence relevant to material issues of fact raised by the objections.” (21 U.S.C. 346a(g)(2)(B). EPA regulations make clear that hearings will only be granted where it is shown that there is “a genuine and substantial issue of fact,” the requestor has identified evidence “which, if established, resolve one or more of such issues in favor of the requestor,” and the issue is “determinative” with regard to the relief requested. (40 CFR 178.32(b)). EPA's final order on the objections is subject to judicial review. (21 U.S.C. 346a(h)(1)).
4.
EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. A short summary is provided below to aid the reader. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see
To assess the risk of a pesticide tolerance, EPA combines information on pesticide toxicity with information regarding the route, magnitude, and duration of exposure to the pesticide. The risk assessment process involves three distinct steps: (1) identification of the toxicological hazards posed by a pesticide and determination of the exposure “level of concern” for humans; (2) estimation of human exposure; and (3) characterization of human risk based on comparison of human exposure to the level of concern.
1.
In evaluating a chemical's dietary risks for threshold effects, EPA uses a reference dose (RfD) approach, which involves a number of considerations including:
• A 'point of departure'(PoD) - the value from a dose-response curve that is at the low end of the observable data (the no observed adverse effect level, or NOAEL, the lowest-observed adverse effect level or LOAEL, or an extrapolated benchmark dose) and that is the dose serving as the 'starting point' in extrapolating a risk to the human population;
• An uncertainty factor to address the potential for a difference in toxic response between humans and animals used in toxicity tests (i.e., interspecies extrapolation);
• An uncertainty factor to address the potential for differences in sensitivity in the toxic response across the human population (for intraspecies extrapolation); and
• The need for an additional safety factor to protect infants and children, as specified in FFDCA section 408(b)(2)(C).
EPA uses the chosen PoD to calculate a safe dose or RfD. The RfD is calculated by dividing the chosen PoD by all applicable safety or uncertainty factors. Typically in EPA risk assessments, a combination of safety or uncertainty factors providing at least a hundredfold (100X) margin of safety is used: 10X to account for interspecies extrapolation and 10X to account for intraspecies extrapolation. Further, in evaluating the dietary risks for pesticide chemicals, an additional safety factor of 10X is presumptively applied to protect infants and children, unless reliable data support selection of a different factor. In implementing FFDCA section 408, EPA also calculates a variant of the RfD referred to as a population adjusted dose (PAD). The PAD is the RfD divided by any portion of the children's safety factor that does not correspond to one of the traditional additional uncertainty/safety factors used in general Agency risk assessment. The reason for calculating PADs is so that other parts of the Agency, which are not governed by FFDCA section 408, can, when evaluating the same or similar substances, easily identify which aspects of a pesticide risk assessment are a function of the particular statutory commands in FFDCA section 408. For acute assessments, the risk is expressed as a percentage of a maximum acceptable dose or the acute PAD (i.e., the acute dose which EPA has concluded will be “safe''). As discussed below in Unit V.C., dietary exposures greater than 100 percent of the acute PAD are generally cause for concern and would be considered “unsafe” within the meaning of FFDCA section 408(b)(2)(B). Throughout this document general references to EPA's calculated safe dose are denoted as an acute PAD, or aPAD, because the relevant point of departure for carbaryl is based on an acute risk endpoint.
In evaluating a chemical's dietary risk for non-threshold effects, such as cancer; EPA's default approach is to extrapolate a Q1* from the dose-response curve as a measure of cancer potency, and then to use this Q1* value in conjunction with estimated dietary exposure to estimate the probability of occurrence of additional adverse effects. The Q1*is the 95th percentile upper confidence limit from a tumor dose response curve extrapolated using a linear low-dose model. For non-threshold dietary cancer risks, EPA generally considers cancer risk to be negligible if the probability of increased cancer cases falls within the range of 1 in 1 million.
Animal studies show that carbaryl, like other NMC pesticides, causes transient, reversible inhibition of cholinesterase activity in brain, red blood cells, and plasma across all tested routes of exposure. Developmental toxicity was seen in rats and rabbits treated with carbaryl during gestation; effects included decreased fetal weight and incomplete ossification (bone formation). A carbaryl rat reproductive toxicity study showed decreased pup survival, and a rat developmental neurotoxicity study showed changes in fetal brain morphometry. In addition, a comparative cholinesterase study shows that young animals had increased sensitivity, compared with adults, to inhibition of brain cholinesterase from carbaryl. EPA used endpoints from the comparative cholinesterase study to assess human health risk in both the single chemical risk assessment for carbaryl and in the cumulative risk assessment for the NMC pesticides. Carbaryl is considered to be “likely to be carcinogenic in humans” based on tumors in male mice and EPA utilized the Agency default low-dose linear extrapolation (Q1*) approach to quantify cancer risk.
2.
The Agency uses a combination of monitoring data and predictive models to evaluate environmental exposure of humans to carbaryl, which may occur from ingesting carbaryl residues in food or drinking water, or from using products containing carbaryl in residential settings. These are described below.
a.
EPA uses a computer program, the Dietary Exposure Evaluation Model (DEEM), and the USDA Food Commodity Intake database (FCID), to estimate exposure by combining data on human consumption amounts with residue values in food commodities. DEEM-FCID
DEEM-FCID
For carbaryl's assessment, EPA used DEEM-FCID
Probabilistic analysis is used to predict the frequency with which variations of a given event will occur. By taking into account the actual distribution of possible consumption and pesticide residue values, probabilistic analysis for pesticide exposure assessments “provides more accurate information on the range and probability of possible exposure and their associated risk values” (Ref. 3). In capsule, a probabilistic pesticide exposure analysis constructs a distribution of potential exposures based on data on consumption patterns and residue levels and provides a ranking of the probability that each potential exposure will occur. People consume differing amounts of the same foods, including none at all, and a food will contain differing amounts of a pesticide residue, including none at all.
The probabilistic technique that DEEM-FCID
(1) Identification of any food(s) that could bear the residue in question for each person/day in the CSFII;
(2) Calculation of an exposure level for each of the thousands of person/days in the CSFII database, based on the foods identified in Step #1 by randomly selecting residue values for the foods from the residue database;
(3) Repetition of Step #2 up to one thousand times for each person/day; and
(4) Collection of all of the hundreds of thousands of potential exposures estimated in Steps # 2 and 3 in a frequency distribution.
The resulting probabilistic assessment presents a range of exposure/risk estimates.
b.
Because of the limitations in most monitoring studies, EPA's standard approach is to use simulation water exposure models as the primary means to estimate pesticide exposure levels in drinking water. EPA's computer models use detailed information on soil properties, crop characteristics, and weather patterns to estimate water concentrations in vulnerable locations where the pesticide could be used according to its label. (69 FR 30042, May 26, 2004). These models calculate estimated water concentrations of pesticides using laboratory data that describe how fast the pesticide breaks down to other chemicals and how it moves in the environment at these vulnerable locations. The modeling provides an estimate of pesticide concentrations in ground and surface water. Daily concentrations can be estimated continuously over long periods of time, and for places that are of most interest for any particular pesticide.
EPA relies on models it has developed for estimating pesticide concentrations in both surface water and ground water. Typically EPA uses a two-tiered approach to modeling pesticide concentrations in surface and ground water. If the first tier model suggests that pesticide levels in water may be unacceptably high, a more ined model is used as a second tier assessment. For surface water assessments, the second tier model is actually a combination of two models: The Pesticide Root Zone Model (PRZM) and the Exposure Analysis Model System (EXAMS).
A detailed description of the models routinely used for exposure assessment is available from the EPA web site:
In modeling potential surface water concentrations, EPA attempts to model areas of the country that are highly vulnerable to surface water contamination rather than simply model “typical” locations occurring across the nation. Consequently, EPA models exposures occurring in small highly agricultural watersheds in different growing areas throughout the country. The scenarios are designed to capture residue levels in drinking water from reservoirs with small watersheds with a large percentage of land use in agricultural production. EPA believes these assessments are likely reflective of a small subset of the watersheds across the country that maintain drinking water reservoirs, representing a drinking water source generally considered to be more vulnerable to frequent high concentrations of pesticides than most locations that could be used for crop production.
When EPA completed the carbaryl Interim Reregistration Eligibility Decision (IRED)
EPA also considers available surface water monitoring data, including data from the US Geological Survey (USGS) National Water Quality Assessment Program (NAWQA), in conducting drinking water assessments. For the 2007 carbaryl RED, EPA considered data from a variety of sources, including NAWQA, the joint USGS-EPA Mini Pilot Monitoring Program, Washington and California state monitoring data, and registrant voluntary water monitoring study measuring carbaryl in targeted community water systems associated with watersheds having high carbaryl use.
c.
3.
For threshold risks, EPA estimates risk in one of two ways. Where EPA has calculated an RfD/PAD, risk is estimated by expressing human exposure as a percentage of the RfD/PAD. Exposures lower than 100 percent of the RfD/PAD are generally not of concern. Alternatively, EPA may express risk by dividing the estimated human exposure into the PoD to derive a margin of exposure (MOE). The MOE is compared with a level of concern, which is the product of all applicable uncertainty/safety factors. In contrast to the RfD/PAD approach, the higher the MOE, the lower the risk concern for the pesticide. Accordingly, if the level of concern is 100, MOEs equal to or exceeding 100 would generally not be of concern.
As a conceptual matter, the RfD/PAD and MOE approaches are fundamentally equivalent. For a given risk and given exposure of a pesticide, if exposure to a pesticide were found to be acceptable under an RfD/PAD analysis it would also pass under the MOE approach, and vice-versa. However, for any specific pesticide, risk assessments for different exposure durations or routes may yield different results. This is a function not of the choice of the RfD/PAD or MOE approach but of the fact that the levels of concern and the levels of exposure may differ depending on the duration and route of exposure.
For non-threshold risks (generally, cancer risks), EPA uses the slope of the dose-response curve for a pesticide in conjunction with an estimation of human exposure to that pesticide to estimate the probability of occurrence of additional adverse effects. For non-threshold cancer risks, EPA generally considers cancer risk to be negligible if the probability of increased cancer cases falls within the range of 1 in 1 million. Risks exceeding values within that range would raise a risk concern.
1.
In general, Section 408 of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA assessments either directly through use of a margin of exposure analysis or through using uncertainty (safety) factors in calculating a dose level that poses acceptable risk to humans.
In applying the children's safety factor provision, EPA has interpreted the statutory language as imposing a presumption in favor of applying an additional 10X safety factor (Ref. 9). Thus, EPA generally refers to the additional 10X factor as a presumptive or default 10X factor. EPA has also made clear, however, that the presumption can be overcome if reliable data demonstrate that a different factor is safe for children (Id.). In determining whether a different factor is safe for children, EPA focuses on the three factors listed in section 408(b)(2)(C) - the completeness of the toxicity database, the completeness of the exposure database, and potential pre- and post-natal toxicity. In examining these factors, EPA strives to make sure that its choice of a safety factor, based on a weight-of-the-evidence evaluation, does not understate the risk to children. (Id.).
When EPA evaluated the carbaryl toxicological database in 2003 to determine the appropriate FQPA Safety Factor for use in the IRED, available studies included rat and rabbit teratology (developmental toxicity) studies, a rat developmental neurotoxicity study, a rat reproductive toxicity study, a 4–week dermal rat study, acute and subchronic neurotoxicity screening studies, and a chronic oral dog study (Ref. 10). Based on the weight of the evidence as evaluated in 2003, the FQPA Safety Factor was determined to be 3X due to the lack of a NOAEL in the chronic dog study. This was what the weight of the evidence showed in 2003.
The science has advanced since 2003; additional information on pharmacokinetics as well as additional acute cholinesterase data have become available for carbaryl and other NMCs. Due to the rapid recovery of cholinesterase activity, chronic exposure is no longer considered to be a concern for carbaryl. As the science has advanced, science policy has also evolved. As EPA acquired developmental neurotoxicity and comparative cholinesterase data on the NMCs, it became apparent that comparative cholinesterase studies measuring red blood cell (RBC) and brain cholinesterase inhibition in both maternal and young animals (postnatal day 11 (PND11) and postnatal day 17 (PND17)) were a more accurate predictor of age-related sensitivity than developmental neurotoxicity studies measuring behavioral and histopathological changes. Therefore, EPA informed registrants that, in the absence of comparative cholinesterase data for each pesticide, a 10X FQPA Safety Factor would be applied to that pesticide in the NMC cumulative risk assessment. If comparative cholinesterase data were available, EPA used a data derived approach for the FQPA Safety Factor by comparing the benchmark dose (BMD) at the 10% inhibition level for either brain or RBC acetyl cholinesterase inhibition between maternal animals and the juvenile animals (typically PND11).
2.
Acetylcholinesterase (AChE) is an enzyme that breaks down acetylcholine and terminates its stimulating action in the synapse between nerve cells and target cells. When AChE is inhibited, acetylcholine builds up prolonging the stimulation of the target cell. This excessive stimulation potentially results in a broad range of adverse effects on many bodily functions. Depending on
EPA's cholinesterase inhibition policy statement explains EPA's approach to evaluating the risks posed by cholinesterase-inhibiting pesticides such as carbaryl. (Id). The policy focuses on three types of effects associated with cholinesterase-inhibiting pesticides that may be assessed in animal and human toxicological studies: (1) physiological and behavioral/functional effects; (2) cholinesterase inhibition in the central and peripheral nervous system; and (3) cholinesterase inhibition in red blood cells and blood plasma. The policy discusses how such data should be integrated in deriving an acceptable dose (RfD/PAD) for a cholinesterase-inhibiting pesticide.
Clinical signs or symptoms of cholinesterase inhibition in humans, the policy concludes, provide the most direct evidence of the adverse consequences of exposure to cholinesterase-inhibiting pesticides. Nonetheless, as the policy notes, due to strict ethical limitations, studies in humans are “quite limited.” (Id. at 19). Although animal studies can also provide direct evidence of cholinesterase inhibition effects, animal studies cannot easily measure cognitive effects of cholinesterase inhibition such as effects on perception, learning, and memory. For these reasons, the policy recommends that “functional data obtained from human and animal studies should not be relied on solely, to the exclusion of other kinds of pertinent information, when weighing the evidence for selection of the critical effect(s) that will be used as the basis of the RfD or RfC.” (Id. at 20).
After clinical signs or symptoms, cholinesterase inhibition in the nervous system provides the next most important endpoint for evaluating cholinesterase-inhibiting pesticides. Although cholinesterase inhibition in the nervous system is not itself regarded as a direct adverse effect, it is “generally accepted as a key component of the mechanism of toxicity leading to adverse cholinergic effects.” (Id. at 25). As such, the policy states that it should be treated as “direct evidence of potential adverse effects” and “data showing this response provide valuable information in assessing potential hazards posed by anticholinesterase pesticides.” (Id.). AChE inhibition in brain and the peripheral nervous system is the initial adverse biological event which results from exposure to NMC pesticides, such as carbaryl, and with sufficient levels of inhibition leads to other effects. Thus, AChE inhibition provides the most appropriate effect to use in risk extrapolation for derivation of RfDs and PADs. Protecting against AChE inhibition ensures that the other adverse effects mentioned above do not occur.
In summary, EPA uses a weight of evidence approach to determine the toxic effect that will serve as the appropriate PoD for a risk assessment for AChE inhibiting pesticides, such as carbaryl (Id). The neurotoxicity that is associated with these pesticides can occur in both the central (brain) and the peripheral nervous system. In its weight of the evidence analysis, EPA reviews data, such as AChE inhibition data from the brain, peripheral tissues and blood (e.g., RBC or plasma), in addition to data on clinical signs and other functional effects related to AChE inhibition. Based on these data, EPA selects the most appropriate effect on which to regulate; such effects can include clinical signs of AChE inhibition, central or peripheral nervous tissue measurements of AChE inhibition or RBC AChE measures (Id). Although RBC AChE inhibition is not adverse in itself, it is a surrogate for inhibition in peripheral tissues when peripheral data are not available. As such, RBC AChE inhibition provides an indirect indication of adverse effects on the nervous system (Id.). Due to technical difficulties regarding dissection of peripheral nerves and the rapid nature of carbaryl toxicity, measures of AChE inhibition in the peripheral nervous system are very rare for NMC pesticides. For these reasons, other state and national agencies such as California, Washington, Canada, the European Union, as well as the World Health Organization (WHO), all use blood measures in human health risk assessment and/or worker safety monitoring programs.
3.
In addition to the BMD, a “confidence limit” was also calculated. Confidence limits express the uncertainty in a BMD that may be due to sampling and/or experimental error. The lower confidence limit on the dose used as the BMD is termed the BMDL, which the Agency uses as the PoD. Use of the BMDL for deriving the PoD rewards better experimental design and procedures that provide more precise estimates of the BMD, resulting in tighter confidence intervals. Use of the BMDL also helps ensure with high confidence (e.g., 95% confidence) that the selected percentage of AChE inhibition is not exceeded. From the PoD, EPA calculates the RfD and aPAD.
Numerous scientific peer review panels over the last decade have supported the Agency's application of the BMD approach as a scientifically supportable method for deriving PoDs in human health risk assessment, and as an improvement over the historically applied approach of using NOAELs or LOAELs. The NOAEL/LOAEL approach does not account for the variability and uncertainty in the experimental results, which are due to characteristics of the study design, such as dose selection, dose spacing, and sample size. With the BMD approach, all the dose response data are used to derive a PoD. Moreover, the response level used for setting regulatory limits can vary based on the chemical and/or type of toxic effect (Refs. 12, 13, 14, and 15). Specific to carbaryl and other NMCs, the FIFRA SAP has reviewed and supported the statistical methods used by the Agency to derive BMDs and BMDLs on two occasions, February 2005 and August 2005 (Refs. 14 and 15).
Carbaryl is a carbamate insecticide and molluscide that was first registered in 1959 for use on cotton. Carbaryl has many trade names, but is most commonly known as Sevin®. In 1980, the Agency published a position document summarizing its conclusions from a Special Review of carbaryl, and concluded that risk concerns, particularly those related to teratogenicity, did not warrant cancellation of the registration for carbaryl. A Registration Standard, issued for carbaryl in 1984 and revised
EPA completed an IRED for carbaryl on June 30, 2003 (2003 IRED). The Agency amended the IRED on October 22, 2004 (2004 Amended IRED), and published a formal Notice of Availability for the document, which provided for a 60–day public comment period (Ref. 16). EPA received numerous comments on the carbaryl IRED, including the NRDC petition requesting that EPA cancel all carbaryl registrations and revoke all tolerances. The Agency published a Notice of Receipt for the petition in the
On March 9, 2005, EPA issued a cancellation order for the liquid broadcast use of carbaryl on residential turf to address post-application risk to toddlers (Ref. 17). In March 2005, EPA also issued generic and product-specific DCIs for carbaryl. The carbaryl generic DCI required several studies of the active ingredient carbaryl, including additional toxicology, worker exposure monitoring, and environmental fate data. The product-specific DCI required acute toxicity and product chemistry data for all pesticide products containing carbaryl; these data are being used for product labeling. EPA has received numerous studies in response to these DCIs, and, where appropriate, these studies were considered in the tolerance reassessment.
In response to the DCIs, many carbaryl registrants chose to voluntarily cancel their carbaryl products, rather than revise their labels or conduct studies to support these products. EPA published a notice of receipt of this request in the
In addition, Bayer, the sole remaining technical registrant responsible for developing data, requested waivers of required exposure monitoring or residue studies because these use scenarios are not on any Bayer technical or product labels or were to be deleted from Bayer labels: carbaryl use in or on pea and bean, succulent shelled (
Bayer subsequently requested that all of their carbaryl registrations bearing any of these uses be amended to delete these uses; EPA published a Notice of receipt of this request in the
In June 2006, EPA determined that the uses associated with 120 of the existing carbaryl tolerances are not significant contributors to the overall NMC cumulative risk and as a result these tolerances will have no effect on the retention or revocation of other NMC tolerances. Therefore, EPA considered these 120 tolerances for carbaryl as reassessed on June 29, 2006, and posted this decision on the internet site. (See
Carbaryl is a member of the NMC class of pesticides which share a common mechanism of toxicity by affecting the nervous system via cholinesterase inhibition. Specifically, carbaryl is a reversible inhibitor of AChE. A cumulative risk assessment, which evaluates exposures based on a common mechanism of toxicity, was conducted to evaluate risk from food, drinking water, residential use, and other non-occupational exposures resulting from registered uses of NMC pesticides, including carbaryl.
In late November 2006, EPA received data from a carbaryl comparative cholinesterase study, conducted to determine the comparative sensitivity of adults and offspring to cholinesterase inhibition by carbaryl. These data were used to revise the FQPA Safety Factor for carbaryl for the NMC cumulative risk assessment and to select new toxicology endpoints (PoDs) for the risk assessment. The Agency determined that it was appropriate to use the new FQPA Safety Factor and revised PoDs in both the NMC cumulative risk assessment and the carbaryl-specific human health risk assessment. Because this necessitated a revision of the carbaryl human health aggregate risk assessment, EPA also considered additional new data generated in response to the DCI, new methodologies, and other new information in performing its most recent assessment of carbaryl and in responding to this Petition. EPA has thus, in effect, revised the carbaryl single chemical assessment in response to the issues raised during the public comment process as well as based upon more recent data and analytical methods.
On September 26, 2007, EPA issued the NMC cumulative risk assessment. EPA concluded that the cumulative risks associated with the NMC pesticides meet the safety standard set forth in section 408(b)(2) of the FFDCA, provided that the mitigation specified in the NMC cumulative risk assessment is implemented, such as cancellation of all uses of carbofuran, termination of methomyl use on grapes, etc. EPA has therefore terminated the tolerance reassessment process under 408(q) of
In conjunction with the NMC cumulative risk assessment, EPA completed a RED for carbaryl on September 24, 2007 and issued this RED on October 17, 2007 with a formal Notice of Availability in the
As required by the Food Quality Protection Act of 1996, EPA reassessed the safety of the carbaryl tolerances under the safety standard established in the FQPA. In the September 2007 RED for carbaryl, EPA evaluated the human health risks associated with all currently registered uses of carbaryl and determined that there is a reasonable certainty that no harm will result from aggregate non-occupational exposure to the pesticide chemical residue. In making this determination, EPA considered dietary exposure from food and drinking water and all other non-occupational sources of pesticide exposure for which there is reliable information (Ref. 18). The Agency has concluded that with the adoption of the risk mitigation measures identified in the NMC cumulative risk assessment, all of the tolerances for carbaryl meet the safety standard as set forth in section 408(b)(2)(D) of the FFDCA. Therefore, the tolerances established for residues of carbaryl in/on raw agricultural commodities were considered reassessed as safe under section 408(q) of FFDCA, as amended by FQPA, in September 2007. These findings satisfied EPA's obligation to review the carbaryl tolerances under the FQPA safety standard.
To implement the carbaryl tolerance reassessment, EPA commenced with rulemaking in 2008. The Agency published a Notice of proposed tolerance actions in the May 21, 2008
NRDC filed a petition dated January 10, 2005 (Petition), requesting, among other things, that EPA cancel all carbaryl registrations and revoke all carbaryl tolerances (Ref. 1). In response to EPA's publication of the Petition pursuant to section 408(d) of the FFDCA, NRDC resubmitted its Petition and earlier comments in support of its Petition. (See Docket ID EPA–HQ–OPP–2005–0077–0066).
It should be noted that NRDC's January 10, 2005 submission is in the form of comments on and requests for changes to the Carbaryl Interim Reregistration Eligibility Decision published in the
In response to that portion of NRDC's petition seeking revocation of the carbaryl tolerances, EPA published notice of the Petition for comment on March 30, 2005 (70 FR 16281). EPA received approximately 5,230 comments in support of the Petition. The vast majority of these comments followed an identical or similar format expressing the commenters support for the Petition in general terms. These commenters uniformly protested the Agency's decision to continue allowing the use of carbaryl “a chemical [EPA] consider[s] likely to cause cancer.” As a preliminary note, although the Agency considers carbaryl to have the potential to cause cancer, exposure to carbaryl residues is so low that the actual risk of cancer from carbaryl is negligible. EPA is generally not concerned about cancer risks at or below the range of 1 x 10
Of the subset of comments not based upon a form letter, most related to ecological issues and in particular toxicity to bees and apple thinning uses. These comments are not relevant to the requested revocation of pesticide tolerances. EPA is responding to the Petition insofar as it seeks the cancellation of all carbaryl registrations separately and, therefore, these comments are not directly relevant here. One commenter, Bayer, the sole technical product registrant, submitted comments that purport to address all of the issues raised by NRDC (Ref. 19). In any event, these comments as a whole did not add any new information pertaining to whether the tolerances were in compliance with the FFDCA. Comments on the specific claims by NRDC are summarized in Unit VII immediately following the summary of NRDC's claim but prior to EPA's response to the claim.
This Order addresses NRDC's petition to revoke carbaryl tolerances. As noted above, this “Petition” was included as part of NRDC's comments on the carbaryl IRED. Thus, the Petition contains a number of comments that are just that, comments, and that do not provide a basis upon which to either cancel all carbaryl registrations or revoke all carbaryl tolerances. Where those comments are directly related to suggestions that the carbaryl tolerances do not meet the safety standard in section 408 of the FFDCA, the Agency has tried to address those comments in this petition response. However, EPA has not attempted to respond to every comment or suggestion for improvement made in NRDC's filing.
EPA has, to the extent possible, construed NRDC's comments as asserting various grounds as to why the carbaryl tolerances do not meet the
This Order also constitutes a response to a petition dated November 26, 2007, to cancel carbaryl pet collar registrations submitted as part of NRDC's comments on the NMC cumulative assessment (NMC Petition) (Ref. 2). EPA's response to NRDC's petition to cancel pet collar registrations is addressed here because the basis for the petition to cancel pet collars rests on issues related to EPA's assessment of cumulative effects under the FFDCA.
EPA has not addressed claims that concern carbaryl uses that have been canceled, or application methods that have been discontinued since the time of the Petition. Nor is EPA addressing claims that concern carbaryl uses for which the registrant(s) has requested that the use be deleted or registration cancelled pursuant to section 6(f) of FIFRA. These include the liquid broadcast use of carbaryl on residential lawns and turf, cancelled in March 2005 (Ref. 17), and several other uses and application methods which have been or are in the process of cancellation because the registrants are not supporting these uses and application methods with the necessary data (73 FR 49184, August 20, 2008). The following carbaryl uses are in the process of being cancelled: wheat, millet, and fresh/succulent beans and peas (crop subgroup 6B); use of carbaryl drench or dip treatments of seedlings or seed pieces, dust formulations in agricultural crops, granular applications to leafy vegetables (except Brassica), direct applications of carbaryl (except for flea collars) to domestic animals (including dogs, cats, and other pets), and all indoor applications. Carbaryl registrations are also being amended to discontinue the following application methods: drenching dipping, hand held fogger, mosquito adulticide ULV, power backpack sprayer, and tree injection.
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These revisions effectively address NRDC's concerns and EPA is not reopening the issues here. Nonetheless, EPA is providing more specific information concerning the revised risk assessment in the context of the specific issues raised by NRDC.
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Further, Bayer submitted a voluntary drinking water monitoring study for carbaryl, Surface Water Monitoring for Residue of Carbaryl in High Use Areas in the United States: Final Report (MRID 45788101). Bayer defends its drinking water study, stating that it was targeted to community water systems having watersheds with high carbaryl use and that showed lower concentrations than the NAWQA data. Bayer further argues that NRDC's assertion that monitoring can be spotty and is not designed to coincide with high use sites, seasonal application times, watershed characteristics, and urban and agricultural methods is misplaced. Bayer asserts that the monitoring program was targeted and did focus on high use sites, with a sampling program tailored to the application times, and covered both agricultural and non-agricultural uses.
Bayer also argues that the modeling is a worst case scenario and gives several reasons why EPA's model can overestimate movement of surface water, including assumptions regarding use intensity (100% of field treated at maximum rates for the maximum number of times). Bayer then asserts that the worst-case predictions are not confirmed by monitoring data “specifically designed to capture high use areas and application times.” (Ref. 19 at 5).
Another commenter from the Department of Entomology, Virginia Tech, notes that while NRDC complains that EPA makes assumptions in its risk
Another commenter from the University of Florida asserts that the acute drinking water concern is driven by Florida modeling, based upon a 38% crop treated assumption. According to the commenter, actual use in Florida is “probably closer” to one tenth of that amount. Again, according to the commenter, the National Agricultural Statistics Service (NASS) 2003 fruit data report percent crop treated amounts of 3% for Florida and 5% for grapefruit nationally. The commenter takes issue with NRDC's claim that the greater than 600 ppb spike in New York “conforms” to the results from the modeling. In so doing, the commenter asserts that carbaryl in New York degrades much slower than in Florida. The commenter then implies that it is significant that there are no Florida monitoring values that were in the hundred parts per billion concentration range.
c.
As mentioned above, the carbaryl drinking water assessment is no longer based upon the DWLOC approach. EPA officially withdrew the science policy paper describing the DWLOC approach on August 1, 2007 (72 FR 42082). In addition, EPA believes that the new approach is more protective of sensitive population subgroups, including infants and children, than the DWLOC approach used in the carbaryl IRED.
Although EPA did not model nonagricultural use of carbaryl, the Agency considered these uses in the process of evaluating all available water monitoring data for carbaryl for the 2007 carbaryl RED. EPA reviewed the most recent surface water monitoring data for carbaryl in urban and suburban areas for both the carbaryl IRED and the RED. Specifically, EPA considered data from NAWQA, the joint USGS-EPA Mini Pilot Monitoring Program, Washington and California state monitoring data, and a registrant voluntary water monitoring study measuring carbaryl in targeted community water systems associated with watersheds having high carbaryl use. The Agency also considered California monitoring data targeted to urban use of pesticides (Ref. 21).
EPA has also obtained additional information on the groundwater monitoring value of 610 micrograms/liter (μg/L) from Suffolk County New York reported in the carbaryl IRED. Because this value was significantly higher than any other monitoring values from ground or surface water, EPA contacted the Suffolk County government for more information about this particular groundwater sample. The sample associated with that concentration (the actual concentration was 61,000 μg/L, not 610 μg/L) was taken from a sump at a pesticide mixer/loader site as part of a pesticide spill investigation, not from a groundwater monitoring well. Therefore, this value should not have been reported in the Suffolk County water quality database (Suffolk County Department of Health 2007, personal communication); EPA has removed it from the carbaryl drinking water assessment. There were a small number of detections of carbaryl reported to OPP as a result of a quality control check of the Suffolk County database, ranging from 0.1 to 13 μg/L. These values are more in line with other monitoring data for carbaryl reported in the EPA assessment.
Finally, both the commenter from the University of Florida and NRDC are mistaken in their statements that that EPA's drinking water assessment relied on default percent crop treated assumptions. In particular, NRDC appears to have confused percent crop treated (PCT) data for the percentage of a food commodity treated with carbaryl with EPA's use of percent crop area (PCA) in the carbaryl drinking water assessment. The default PCA (87%) represents the largest fraction of a watershed that can be planted to any crop. This default PCA, which is based on Geographic Information Systems (GIS) analysis of fairly large watersheds
In sum, the revised dietary risk assessment for food shows that acute dietary exposure and risk are below the Agency's level of concern for the general U.S. population and all population subgroups. The revised drinking water assessment also does not rely on the old methodology, using DWLOCs. The drinking water assessment was not limited to agriculture uses; EPA included the most recent available monitoring data for carbaryl in urban and suburban areas in the revised assessment. Last, estimated pesticide residues in drinking water were incorporated directly into the exposure component of the dietary assessment.
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Nonetheless, it is worth noting that the CARES model has been transferred to the ILSI Research Foundation and the CARES program and source code is publicly available at no charge. In addition, in 2002, the FIFRA SAP reviewed the underlying science, computational approaches and ease of use of the CARES model. The FIFRA SAP's June 13, 2002 report (Ref. 22) provides results of the panel's deliberations. The FIFRA SAP provided a series of recommendations designed to improve the technical basis of the model and software system. In any case, CARES meets OPP's criteria for use in regulatory decision making with respect to public availability, transparency, and compliance with Agency policy guidelines and NRDC's objection in this regard are without merit.
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Bayer further expressed its belief that EPA's practice of revoking tolerances after a sufficient period of time that allows existing stocks bearing the use being cancelled to clear the channels of trade is in compliance with the requirements of the FQPA. Finally, Bayer argues that NRDC's concern about potential risk from new or increased tolerances being established for carbaryl are not justified because the tolerance reassessment process is not associated with labeling changes that increase the maximum application rates or frequency of application allowed by current labels. Bayer further notes that many of the labeling amendments required by the IRED serve to reduce potential human health and environmental risks. Bayer also notes that the pursuant to the IRED most tolerances will be either reduced, revoked, or left unchanged.
c.
The Agency has completed rulemaking proceedings to revoke and modify the existing carbaryl tolerances,
Finally, to the extent that NRDC argues that tolerances must be revoked simply because an active ingredient or use is not registered in the United States, EPA disagrees. Nothing in the FFDCA requires that tolerances be limited to pesticides that have a U.S. registration. In fact, FIFRA explicitly recognizes that EPA may set import tolerances under the FFDCA. See Section 33 of FIFRA (establishing fees and decision review times for import tolerance applications). While EPA often proposes to revoke tolerances after the cancellation of associated uses because EPA believes the tolerances may no longer be necessary, EPA has always recognized that a revocation can not proceed on such grounds if foreign growers wish to rely on the tolerance. In such circumstances, a tolerance can only be revoked if necessary data to support the tolerance are not provided or if EPA determines that the tolerance does not meet the safety standard.
1.
EPA conducted a benchmark dose analysis for the carbaryl comparative cholinesterase study, using the same modeling methodology used in the NMC cumulative risk assessment. A benchmark dose analysis models the dose-response relationship with a dose-response curve, which allows selection of doses corresponding to a specified level of response, called a benchmark response. This analysis allows EPA to determine a more appropriate point of departure from a toxicology study rather than using the study NOAEL or LOAEL. (See Refs. 12, 23, and 24 for more information on benchmark dose modeling).
The Agency estimated the 10% benchmark dose response (BMD
2.
As previously mentioned in Unit III.C.1. of this document, EPA has revised the FQPA Safety Factor for carbaryl using the most recent data on carbaryl age sensitivity. The new comparative cholinesterase study data was used to derive a new FQPA Safety Factor by comparing the BMD
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c.
The comparative cholinesterase study was conducted specifically to provide age-related sensitivity data for carbaryl to be used in the NMC cumulative risk assessment. Experience with other NMCs has shown that comparative cholinesterase studies provide a more accurate indication of comparative adult and offspring sensitivity than the behavioral and histopathological changes evaluated in the DNT study. The carbaryl comparative cholinesterase study involved oral dosing of three age groups of rats, adults (97 days old) and juveniles 11 or 17 days old (postnatal day, PND, 11 or 17), followed by measurement of both brain and blood cholinesterase. Based on a benchmark dose analysis of the results of this study, EPA identified a clear point of departure (the equivalent of a NOAEL) for brain cholinesterase effects in the young and thus the sensitivity in the young is well-characterized. In these circumstances, EPA finds that it has reliable data on pre- and post-natal toxicity to remove (oral and inhalation) or reduce (dermal) the 10X FQPA Safety Factor.
Based on the results of the benchmark dose analysis from the comparative cholinesterase study, which provide the most sensitive data available to date on age related sensitivity to carbaryl, juvenile animals are 1.8X more sensitive to carbaryl induced cholinesterase inhibition than adults. EPA has thus derived an FQPA Safety Factor of 1.8X. This safety factor of 1.8X is applied to the dermal endpoint because there are no comparative cholinesterase data in offspring from dermal exposure, and because juvenile rats are 1.8X more sensitive than adults based on the oral comparative cholinesterase study in rats. The FQPA Safety Factor is 1X for oral and inhalation endpoints because these endpoints are selected from the comparative cholinesterase data for the most sensitive population (PND11 pups).
Moreover, NRDC's concern that EPA failed to apply an additional 3X uncertainty factor to account for the failure to detect a NOAEL in the DNT study is no longer relevant. Specifically, brain cholinesterase inhibition in the PND 11 animals in the comparative cholinesterase study was the most sensitive endpoint in this study; therefore, this endpoint of 1.1 mg/kg/day was used as the point of departure for the 2007 carbaryl risk assessment. This new endpoint occurs at a lower dose than NRDC's suggested extrapolated NOAEL (i.e., including a 3X uncertainty factor) of 3.3 mg/kg/day for brain morphometry from the DNT study. Because EPA's assessment is now based upon a lower endpoint, NRDC's contention that EPA failed to apply an additional 3X uncertainty factor to the point of departure derived from the DNT study is no longer relevant.
1.
Unit VII.B. discusses EPA's assessment of aggregate dietary exposure to carbaryl from residues in foods and water. That assessment showed that the dietary exposure and risk are below the Agency's level of concern for the general U.S. population and all population subgroups; exposure to carbaryl residues in food comprises <100% of the aPAD at the 99.9th percentile of exposure. Estimated dietary exposure for the general U.S. population is 29% of the aPAD; exposure to children age 1 to 2 years, the most highly exposed population subgroup, comprises 60% of the aPAD. Although refined, these exposure estimates still are likely to overstate exposure and risk.
Pesticide residues to which humans are exposed from residential uses of pesticides must be considered as part of section 408's aggregate exposure calculus. The concern, of course, is that pesticide tolerances should not be established or left in effect if dietary exposures when combined with other sources of exposure exceed safe levels.
2.
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In addition, in a November 2007 petition to cancel all carbaryl pet collar registrations, NRDC asserts that changes in this algorithm made from the preliminary NMC cumulative assessment result in a repeated and additive bias towards reducing the exposure estimate so that it “appears” that the pet collar uses do not exceed the Agency's level of concern. (Ref. 2 at 5-7). Specifically, NRDC takes issue with the following modifications made in the probabilistic assessment for carbaryl as part of the NMC cumulative risk assessment:
• Assuming a child mouths only one hand at a time, thereby dividing the hand-loading residues by 2X.
• Assuming the hand is fully replenished with residues from a contaminated surface on an hourly basis rather than assuming (as done previously with flea collar assessments) full replenishment between each mouthing event, which NRDC contends is a more likely scenario for children actively engaged with their pets.
• Assuming that the maximum time spent with a pet is 1.03 hrs./day. NRDC contends that EPA's assumption in previous assessments of 2 hrs./day is a much more likely scenario for pre-schoolers who are home all day with their pets and for school age children lying with their pets watching TV.
• Assuming that only 1% of the surface area of a single hand is mouthed, which is approximately 1/75
• Assuming that only 20 to 50% of the pesticide is removed per mouthing event (saliva extraction factor). NRDC contends that EPA's assumption in previous assessments that all of the pesticide is removed is more reasonable and realistic.
NRDC argues that all of these modifications in the Agency's algorithm for calculating non-dietary hand-to-mouth exposures for children bias towards reducing the exposure estimate. NRDC also criticizes the Agency for stating that the modifications result from the recommendations from the August 2005 FIFRA SAP. To the contrary, NRDC contends that these modifications were never reviewed or recommended by the FIFRA SAP. NRDC therefore asserts that EPA cannot use this new method presented in the NMC cumulative assessment to “reduce protections for children from pet uses of [carbamate] pesticides”. (Ref. 2 at 7).
b.
c.
As a preliminary matter, it is important to note that EPA assessed pet collars both in the individual chemical assessment and as part of the NMC cumulative risk assessment. The single chemical assessment done for carbaryl was a deterministic assessment. For the NMC cumulative risk assessment, EPA performed a probabilistic assessment.
With respect to the single chemical, deterministic assessment, the assumptions used are based upon Agency standard values for estimating exposure to pets as defined in the 1997 Draft SOPs for Residential Exposure Assessments and amendments. (Refs. 6, 7, and 8). Specifically, SOPs 9.2.1—
In sum, for the single chemical assessment, exposures to children after contact with treated pets were addressed using the latest EPA methodology, as described below:
• Only toddlers are considered because their exposures are considered to be the most highly exposed population by the Agency;
• An equilibrium approach based on a single child “hug” of the treated animal is used to assess dermal exposure (i.e., the skin loads after a single contact with the treated animal and additional contacts don't proportionally add exposures) as described in the amendments to the residential SOPs (Ref. 6), the surface area of the dermal hug is based on a toddler's skin surface area and typical clothing;
• The Agency default for transferability of residues from fur is 20%; however, a pet collar transferable residue study (MRID 45792201) was submitted and used in the assessment for comparative purposes with the Agency's standard approach. The data from this study were used to develop an alternative transferability factor of 2.6% for dusts and liquid applications;
• The active lifetime of a collar is expected to be 120 days based on label statements which were used by the Agency, a daily emission term from the collar of 0.000290 mg/cm/gram ai/day
• Risks are based on an even loading of residues across the entire surface of a 30 lb dog which has been chosen as a representative animal. The animal surface area was calculated using (12.3 * Body Weight (g) 0.65) from the Agency's 1993 Wildlife Exposure Factors Handbook (i.e., dog surface area of 5986 cm
• The approach used to address the hand-to-mouth exposure pathway has been modified since the previous risk assessment. In the previous assessment, contact with dogs was based on 40 events per day, in each event, the palmar surface of the hands (i.e., 20 cm
With respect to the single chemical assessment, NRDC asserts that the Agency failed to properly take into account children hugging and sleeping with pets. To the contrary, EPA's assessment is in fact based upon toddler exposure through hugging and petting. Indeed, for maximum exposure, EPA's assessment is based upon assumptions of hugging and petting followed by mouthing activity. Thus, NRDC's concerns about EPA's assessment not taking hugging into account are misplaced.
The estimation of risk from dermal and oral exposures related to pet collars is best described by means of combining both routes of exposure. The Agency
EPA did not, however, separately assess exposure to toddlers while sleeping with (near or next to) pets wearing a pet collar impregnated with carbaryl. This is because EPA assumes that the “hug” or equilibrium approach is adequately protective for all activities in which a child engages that result in dermal exposure. EPA presented the concept of a pet hug to assess dermal exposure to the FIFRA SAP on September 21, 1999 (64 FR 48394, Ref. 28); this was considered to be a reasonable approach. (Ref. 26). As described in the 1999 Overview document presented to the SAP (Ref. 21), the residential pet SOP “assumes a one to one transfer to the skin of surface area representing both hands. This assumption suggests equilibrium is established between the transferable residues on the pet and the residues on the hand after contact. The concept of equilibrium ... has utility in constructing scenarios such as a child hugging a dog or a child sleeping with a dog. This is possible by assuming direct transfer or transferable residue estimates to human surface area values.” (Ref. 22 at 38 to 39).
NRDC also criticizes the Agency for not including inhalation as an exposure route for residential post-application of flea collars. In so doing, NRDC points out that inhalation was the only route of exposure that EPA estimated in an earlier RED decision on another pesticide used in flea collars.
EPA did not assess inhalation exposure to pet collars impregnated with carbaryl because EPA generally assumes that residential post-application inhalation exposures are negligible due to the low vapor pressures associated with many pesticides. In the case of carbaryl, this assumption is warranted. The vapor pressure of carbaryl is sufficiently low (4.1 x 10
In addition, as the basis for petitioning the Agency to cancel all carbaryl pet collar registrations (submitted as part of NRDC's comments on the NMC cumulative assessment), NRDC asserts that changes in this algorithm made from the preliminary NMC cumulative assessment result in a repeated and additive bias towards reducing the exposure estimate so that it “appears” that the pet collar uses do not exceed the Agency's level of concern. NRDC also criticizes the Agency for stating that the modifications result from the recommendations from the August 2005 FIFRA SAP. To the contrary, NRDC contends that these modifications were never reviewed or recommended by the FIFRA SAP. NRDC then asserts that EPA cannot use this new method presented in the NMC cumulative assessment to “reduce protections for children from pet uses of [carbamate] pesticides.” (Ref. 2 at 7).
EPA disagrees with NRDC's assertion that the techniques used in the NMC cumulative assessment for pet collars results in an additive bias towards reducing exposures and risks. The main difference between the approach used to assess exposure to carbaryl from pet collars in the 2003 RED and the cumulative exposure assessment of the carbaryl pet collar is that the cumulative exposure assessment uses probabilistic techniques to estimate exposures and the single chemical assessment uses deterministic techniques to assess exposures. Probabilistic techniques have the advantage of using distributions of all available data to describe the myriad of potential combinations of residues and activity patterns that may occur as a child is interacting with a pet wearing a carbaryl-impregnated collar. These potential combinations of residues and activities provide a distribution of exposures for use in risk assessment. Deterministic techniques rely on point estimates of both residues and activity patterns. These point estimates may, for example, represent averages or absolute maximum values for residues and activity patterns.
The specific modifications and the reasons for adopting the modification are provided below:
• Assuming a child mouths only one hand at a time, thereby dividing the hand-loading residues by 2X.
This assumption is consistent with the way EPA has assessed hand-to-mouth exposure in the past. Both the EPA Residential SOP methodology (deterministic) and the revised hand-to-mouth algorithm used in the Revised NMC cumulative risk assessment (probabilistic) are based upon the assumption that a child can only place one hand in his/her mouth at a time.
• Assuming the hand is fully replenished with residues from a contaminated surface on an hourly basis rather than assuming (as done previously with flea collar assessments) full replenishment between each mouthing event, which NRDC contends is a more likely scenario for kids actively engaged with their pets.
As stated in the preliminary NMC cumulative risk assessment, previous assumptions regarding replenishment were overly conservative when used in a probabilistic model. These low MOEs were mainly due to the incorporation of micro-activity data into EPA's macro activity models (defined as human exposure models based on daily time step). The non-dietary ingestion pathway was the least refined of the residential exposure pathways modeled in the preliminary revised NMC cumulative risk assessment. This input is part of the revised approach that was developed in collaboration with ORD and is currently being used in the Stochastic Human Exposure and Dose Simulation (SHEDS) model. (For a full explanation of the implications of using microactivity data in a macro activity model, see Ref. 29 p. 91.) The data used in the revised assessment are based on a meta analysis provided by ORD. The meta analysis relies upon the best available observational data on children's mouthing frequency.
• Assuming that the maximum time spent with a pet is 1.03 hours/day. NRDC contends that EPA's assumption in previous assessments of 2 hours/day is a much more likely scenario for pre-
This assumption is based on data that involved videotaping children's time spent with pets. (Ref. 30). As stated in the NMC Cumulative Risk Assessment document, the duration of exposure is assumed to be continuous contact rather than the intermittent contact normally associated with pet care (e.g. walking, feeding). OPP is attempting to draw the distinction between direct contact with a treated pet and the time spent with a pet where there is limited contact. For example, time spent with pets in and around the house may not result in direct contact for the entire duration. The pet collar scenario assessed in the revised NMC Risk Assessment uses pet fur residues transferred to individuals at a rate found during a study of shampooing and grooming for a duration of approximately 1 hour. Use of these data to represent residential exposure to pets is likely to encompass all other potential exposure scenarios involving direct or indirect contact with treated pets.
• Assuming that only 1% of the surface area of a single hand is mouthed, which is approximately 1/75 cm
The Agency is unclear how NRDC determined that a surface area of 1% was used in the NMC cumulative risk assessment. It should be noted that the revised algorithm does not use a surface area (cm
• Assuming that only 20 to 50% of the pesticide is removed per mouthing event (saliva extraction factor). NRDC contends that EPA's assumption in previous assessments that all of the pesticide is removed is more reasonable and realistic.
The assumptions used in the hand-to-mouth assessment are based upon data from several studies (Refs. 31, 32, and 33). The studies were conducted to address the removal efficiency of residues from the hands by saliva and other substances (e.g., ethanol) during mouthing events. The resulting range, 20–50% removal efficiency, is the same used for hand-to-mouth assessment in the Draft Residential SOPs and in the NMC cumulative risk assessment; however, the Residential SOPs rely upon the upper percentile of the range (50%) while the NMC cumulative risk assessment made use of all available data to better estimate exposure using a probabilistic approach.
In sum, EPA made modifications in part because of the FIFRA SAP's comments with respect to the limitations of the approach used in the preliminary NMC cumulative risk assessment—most notable of which was that the approach used in the preliminary NMC cumulative risk assessment was likely to overestimate exposure and EPA should consider not assessing this exposure pathway at all until it has better data. EPA assessed this pathway (which the FIFRA SAP also suggested EPA) but modified the algorithm in an effort to further refine the assessment.
Furthermore, the FIFRA SAP provides independent scientific advice to the EPA on health and safety related issues related to pesticides. Thus, whether the FIFRA SAP reviewed and offered its recommendations on the specifics of the modifications does not preclude EPA from making such modifications (especially where the FIFRA SAP recommends that EPA consider how the approach should be modified). Similarly, review by the FIFRA SAP is not required in order for EPA to make a safety finding. Accordingly, the issues raised by NRDC do not provide a basis for revoking all carbaryl tolerances or cancelling pet collar registrations.
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NRDC's petitions to revoke all carbaryl tolerances are denied. NRDC's arguments have not demonstrated that carbaryl tolerances are unsafe; to the contrary, EPA continues to believe that its risk assessments appropriately support its finding that the carbaryl tolerances pose a reasonable certainty of no harm.
As indicated previously, this action announces the Agency's order denying a petition filed, in part, under section 408(d) of FFDCA. As such, this action is an adjudication and not a rule. The regulatory assessment requirements imposed on rulemaking do not, therefore, apply to this action.
The Congressional Review Act, (5 U.S.C. 801 et seq.), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule for purposes of 5 U.S.C. 804(3).
1. NRDC comments to IRED and petition to cancel registrations dated January 10, 2005.
2. NRDC petition to cancel carbaryl registrations submitted as part of NRDC's comments to
3. USEPA. 2000a. “Choosing a Percentile of Acute Dietary Exposure as a Threshold of Regulatory Concern.” March 16, 2000. Available at:
4. US EPA Office of Pesticide Programs. 1998. Proposed Methods for Basin-Scale Estimation of Pesticide Concentrations in Flowing Water and Reservoirs for Tolerance Reassessment. Presentation to the FIFRA SAP, July 29, 1998.
5. US EPA Office of Pesticide Programs. 1999. Proposed Methods for Determining Watershed-derived Percent Crop Areas and Consideration for Applying Crop Area Adjustments to
6. US EPA. Office of Pesticide Programs. 1997. Standard Operating Procedures (SOPs) for Residential Exposure Assessments (Draft December 19, 1997).
7. US EPA Office of Pesticide Programs. 2001. Science Advisory Council for Exposure (ExpoSAC) Policy 12: Recommended Revisions to the Standard Operating Procedures (SOPs) for Residential Exposure Assessments. February 2001.
8. US EPA Office of Pesticide Programs. 2002a. ExpoSAC Policy 13: Postapplication Exposure Assessment for Children from Pet Treatments. January 2002.
9. US EPA Office of Pesticide Programs. 2002b. Office of Pesticide Programs' Policy on the Determination of the Appropriate FQPA Safety Factor(s) for Use in Tolerance Assessment. Available at
10. US EPA Office of Pesticide Programs. 2002c. Carbaryl: Updated Toxicology Chapter for RED. May 24, 2002. See docket ID EPA–HQ–OPP–2002–0138.
11. US EPA Office of Pesticide Programs. 2000b. The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorous and Carbamate Pesticides (August 18, 2000).
12. US EPA. Office of Research and Development. 2000. Benchmark Dose Technical Guidance Document. Draft report. Risk Assessment Forum, Office of Research and Development, U.S. Environmental Protection Agency. Washington, DC. EPA/630/R–00/001.
13. FIFRA Science Advisory Panel. 2002. Methods Used to Conduct a Preliminary Cumulative Risk Assessment for Organophosphate Pesticides. Final Report from the FIFRA Scientific Advisory Panel Meeting of February 5–7, 2002 (Report dated March 19, 2002). FIFRA Scientific Advisory Panel, Office of Science Coordination and Policy, Office of Prevention, Pesticides and Toxic Substances, U.S. Environmental Protection Agency. Washington, DC. SAP Report 2002–01.
14. FIFRA Science Advisory Panel. 2005a. Final report on
15. FIFRA Science Advisory Panel. 2005b. Final report on Preliminary
16. US EPA Office of Pesticide Programs. 2004. Interim Reregistration Eligibility Decision for Carbaryl. (October 22, 2004).
17. US EPA Office of Pesticide Programs. March 9, 2005 letter to Peg Cherney, Bayer Crop Science, Final Cancellation Order for Carbaryl Liquid Broadcast Application to Lawns/Turf; EPA Registration Numbers 264–324, 264–325, and 264–328.
18. US EPA Office of Pesticide Programs. 2007. Office of Prevention, Pesticides and Toxic Substances, EPA, Reregistration Eligibility Decision for Carbaryl (September 24, 2007).
19. BayerCropScience, Comments of BayerCropScience on the Petition to Revoke or Modify Tolerances Established for Carbaryl. May 31, 2005.
20. US EPA Office of Pesticide Programs. 2007. Carbaryl Refined Drinking Water Time Series Simulations Using Regional PCAs (March 13, 2007).
21. UP3 2007. Pesticides in Urban Surface Water. Urban Uses Trends Annual Report, available at
22. USEPA Office of Pesticide Programs. Report of the FIFRA SAP Meeting held April 30 to May 1, 2002. A Set of Scientific Issues Being Considered by the EPA regarding CARES model review. June 13. 2002. EPA SAP 2002–02.
23. US EPA. Office of Research and Development. 2007. Report on Comparative Cholinesterase Study of Carbaryl May 7, 2007).
24. US EPA Office of Pesticide Programs. 2007. Carbaryl: Updated Endpoint Selection for Single Chemical Risk Assessment (June 29, 2007).
25. Padilla S, Setzer W, Marshall RS, et al. 2007. Time Course of cholinesterase inhibition in adult rats treated acutely with carbaryl, carbofuran, formetanate, methonmy, methiocarb, oxamyl, or propoxur.
26. US EPA Office of Pesticide Programs. 2007. Carbaryl: Review of in vitro Dermal Absorption Study (MRID 47151902). June 28, 2007.
27. US EPA Office of Pesticide Programs. 2007. Carbaryl: Revisions to Residential Exposure and Risk Assessment. June 29, 2007.
28. US EPA Office of Pesticide Programs. 1999. Overview of Issues Related to the Standard Operating Proceedures for Residential Exposure Assessment. Presented to the FIFRA SAP on September 21, 1999.
29. US EPA Office of Pesticide Programs. 2007. Revised
30. Freeman, N. C. G., Jimenez, M., Reed, K. J., Gurunathan, S., Edwards, R. D., & Lioy, P. J. 2001. Quantitative Analysis of Children's Microactivity Patterns: The Minnesota Children's Pesticide Exposure Study.
31. Geno PW, Camann DE, Harding, HJ, Villalobos K, Lewis RG. 1995. Handwipe Sampling and Analysis Procedure for the Measurement of Dermal Contact with Pesticides.
32. Fenske R. and C. Lu. 1994. Determination of Handwash Removal Efficiency: Incomplete Removal of the Pesticide Chlorpyrifos from Skin by Standard Handwash Techniques. American Industrial Hygiene Association Journal. 55(5): 425–432.
33. Wester RC, and Maibach HI. 1989. Dermal Decontamination and Percutaneous Absorption. In: Percutaneous Absorption. 2nd ed. R. Bronaugh and H.I. Maibach, editors. New York: Marcel Dekker, pp 335–342.
Environmental protection, Carbaryl, Pesticides and pest.
Environmental Protection Agency (EPA).
Final rule.
This regulation amends the tolerances in the 40 CFR 180.518 for residues of the fungicide, pyrimethanil, 4,6-dimethyl-
This regulation is effective October 29, 2008. Objections and requests for hearings must be received on or before December 29, 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–2008–0609. All documents in the docket are listed in the docket index available at
Tamue L. Gibson, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–9096; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111).
• 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 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 electronically available documents at
Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2008–0609 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 December 29, 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
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In the
Pace International is seeking a tolerance increase for pyrimethanil to support the use of thermofogging as a viable method of application. It is generally recognized that thermofogging may result in variable residues dependent on a wide range of factors, and field studies on apples have demonstrated residue levels of pyrimethanil up to 9.47 ppm, which is greater than the existing pome fruit tolerance.
Based upon review of the data supporting the petition, EPA is establishing a lower tolerance for pome
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. . . .”
Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, 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 increased tolerances for residues of the fungicide pyrimethanil, 4,6-dimethyl-
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Pyrimethanil is of low acute toxicity by the oral, inhalation, and dermal routes. It is slightly irritating to the eyes and non-irritating to the skin in rabbit studies. Pyrimethanil is not a dermal sensitizer. Subchronic and chronic repeated oral toxicity studies in rats, mice, and dogs primarily resulted in decreased body weight and body-weight gains, often accompanied by decreased food consumption. The major target organs in rats and mice were the liver and thyroid. In subchronic studies in rats and mice, liver toxicity was manifested as increased absolute and relative body weights. Histopathological changes in the liver were primarily associated with increased evidence of hypertrophy in centrilobular hepatocytes. In a subchronic toxicity study in mice, increases in absolute thyroid weight were observed, associated with exfoliative necrosis and pigmentation of follicular cells. In a subchronic toxicity study in rats, thyroid effects were manifested as an increased incidence and severity of follicular epithelial hypertrophy and follicular epithelial brown pigment. There was no quantitative or qualitative evidence of increased susceptibility following prenatal exposure (in rats and rabbits), or postnatal exposure (in rats). There were no effects on fertility or reproduction in the 2–generation reproduction study in rats.
No signs of neurotoxicity were evident at doses up to 392 milligrams/kilograms/day (mg/kg/day) in the subchronic neurotoxicity study in rats. No evidence of neuropathology was seen in neurotoxicity studies, subchronic or chronic studies in mice, rats, and dogs.
In a carcinogenicity study in mice, there was no increase in the incidence of any tumor types in either sex. In a carcinogenicity study in rats, the thyroid was the only tissue showing a higher incidence of tumors than those seen in the control group. In this study, benign follicular cell adenomas were seen in both sexes. A pair-wise comparison of the incidence in the high-dose treated males was not statistically significant when compared to the control group, while the high-dose females were determined to be statistically significant. EPA classified pyrimethanil as a Group C- possible human carcinogen; EPA is using a threshold or MOE approach to estimate cancer risk to humans based on its conclusion that the thyroid tumors associated with administration of pyrimethanil in Sprague-Dawley rats are likely to be due to a disruption in the thyroid-pituitary status. The mode of action for thyroid carcinogens such as pyrimethanil is a threshold effect that is well understood by the Agency. There is no concern for mutagenicity resulting from exposures to pyrimethanil.
In a 90–day oral toxicity study with rats, a slight decrease in thymus weight was observed at 529 mg/kg/day (highest dose tested; (HDT)). There were no histopathological findings noted in the thymus. There were no effects on the thymus in the chronic carcinogenicity study in rats at doses up to and including 221 mg/kg/day HDT. Therefore, decreases in thymus weight in the 90–day study are considered equivocal and not a trigger for immunotoxicity study.
Specific information on the studies received and the nature of the adverse effects caused by pyrimethanil, [4,6-dimethyl-
For hazards that have a threshold below which there is no appreciable risk, a toxicological point of departure (POD) is identified as the basis for derivation of reference values for risk assessment. The POD may be defined as the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) or a Benchmark Dose (BMD) approach is sometimes used for risk assessment. Uncertainty/safety factors (UFs) are used in conjunction with the POD 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 dietary risks by comparing aggregate food and water 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 POD by all applicable UFs. Aggregate short-term, intermediate-, and chronic-term risks are evaluated by comparing food, water, and residential exposure to the POD to ensure that the margin of exposure (MOE) called for by the product of all applicable UFs is not exceeded. This latter value is referred to as the Level of Concern (LOC).
For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect greater than that expected in a lifetime. 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 pyrimethanil used for human risk assessment can be found at
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In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994–1996 and 1998 Nationwide Continuing Surveys of Food Intakes by Individuals (CSFII). As to residue levels in food, EPA assumed tolerance-level residues, 100% crop treated (PCT), default processing factors as necessary, and empirical processing factors for orange and apple juice.
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Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS)] and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of pyrimethanil and its major metabolite (2-amino-4,6-dimethylpyrimidine) for acute exposures are estimated to be 37.8 parts per billion (ppb) for surface water and 4.8 ppb for ground water and for chronic exposures are estimated to be 5.1 ppb for surface water and 4.8 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 37.8 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration value of 5.1 ppb was used to assess the contribution to drinking water.
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Pyrimethanil is not registered for any specific use patterns that would result in residential exposure.
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EPA has not found pyrimethanil to share a common mechanism of toxicity with any other substances, and pyrimethanil does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyrimethanil does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
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i. The toxicity database for pyrimethanil is adequate. EPA classified the submitted subchronic neurotoxicity study as unacceptable because it was not conducted at doses up to 1,000 mg/kg/day (limit-dose). Nonetheless, EPA determined that no additional data is needed on neurotoxicity because, given that no signs of neurotoxicity were evident at doses up to 392 mg/kg/day in the subchronic neurotoxicity study in rats and no evidence of neuropathology was seen in neurotoxicity studies, subchronic or chronic studies in mice, rats, and dogs, the results of a repeat study are not likely to impact the current endpoints used for risk assessment. EPA began requiring functional immunotoxicity testing (series 870.7800) of all food and non-food use pesticides on December 26, 2007. These studies are not yet available for pyrimethanil. In the absence of specific immunotoxicity studies, EPA has evaluated the available toxicity data for pyrimethanil and determined that an additional database uncertainty factor is not needed to account for potential immunotoxicity. In a 90–day oral toxicity study with rats, a slight decrease in thymus weight was observed at 529 mg/kg/day HDT. There were no histopathological findings noted in the thymus and a NOAEL of 54.5 mg/kg/day was established. There were no effects on thymus in the chronic carcinogenicity study in rats at doses up to and including 221 mg/kg/day HDT. Therefore, decreases in thymus weight in the 90–day study are considered equivocal and not a trigger for an immunotoxicity study. Since an immunotoxicity study is now a data requirement in the revised 40 CFR part 158, it will be required as a condition of registration. However, a database uncertainty factor is not warranted since the effects (decreased thymus weight) were seen only in the 90–day study and not in a chronic study, the effects were only seen at a relatively high dose, and the decrease in thymus weight was not associated with any histopathological finding.
ii. Based on the weight of evidence, a developmental neurotoxicity study is not required for pyrimethanil since there is no evidence of neuropathology and no neurotoxic signs up to 392 mg/kg/day in a subchronic neurotoxicity study in rats where the only evidence of neurotoxicity occurs after an acute dose level (1,000 mg/kg) much higher than the doses used to establish endpoints for risk assessment.
iii. There is no evidence that pyrimethanil results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessment utilizes tolerance-level residues and 100 PCT for all proposed/established commodities. By using these assumptions, the acute and chronic exposures/risks will not be underestimated. The dietary drinking water assessment utilizes water concentration values generated by models and associated modeling parameters which are designed to provide conservative, health-protective, high-end estimates of water concentrations which will not likely be exceeded. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pyrimethanil in drinking water.
EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded.
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Pyrimethanil is not registered for any use patterns that would result in intermediate-term residential exposure. Therefore, the intermediate-term aggregate risk is the sum of the risk from exposure to pyrimethanil through food and water, which has already been addressed, and will not be greater than the chronic aggregate risk.
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Adequate enforcement methodology, high performance liquid chromatography and liquid chromatography-mass spectrometry (HPLC and LC-MS/MS) are available to enforce the tolerance expression. The method may be required from: Chief, Analytical Chemistry Branch,
Codex maximum residue limits (MRLs) have been established for pyrimethanil
A Canadian MRL for pome fruit is established at 3 ppm. There are no Mexican MRLs established for residues of pyrimethanil on the crops associated with this tolerance petition.
One comment was received from an anonymous commenter objecting to increasing the tolerances. The comments contained no scientific data or evidence to rebut the Agency's conclusions that there is reasonable certainty that no harm will result from aggregate exposure to pyrimethanil.
Based upon review of the dietary exposure levels and the residue data from an available ruminant feeding study, the existing pyrimethanil tolerances have been reassessed and the Agency has determined that the tolerances for residues in cattle, goat, horse, and sheep kidney should be increased to 2.5 ppm and the tolerance for residues in milk should be lowered to 0.05 ppm. Additionally, the apple, wet pomace residue tolerance should be lowered to 40 ppm.
Therefore, tolerances are amended to increase the residues of the fungicide, pyrimethanil, 4,6-dimethyl-
This final rule establishes tolerances 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.
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Environmental Protection Agency (EPA).
Immediate final rule.
During a review of Texas' regulations, the EPA identified a variety of State-initiated changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). We have determined that these changes are minor and satisfy all requirements needed to qualify for Final authorization and are authorizing the State-initiated changes through this Immediate Final action. In addition, today's document corrects technical errors made in the August 18, 1999 and June 14, 2005
The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the Federal program. The EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State statutes and regulations that will be subject to the EPA's inspection and enforcement. The rule codifies in the regulations the prior approval of Texas' hazardous waste management program and incorporates by reference authorized provisions of the State's statutes and regulations.
This regulation is effective December 29, 2008, unless the EPA receives adverse written comment on the codification of the Texas authorized RCRA program by the close of business November 28, 2008. If the EPA receives such comments, it will publish a timely withdrawal of this immediate final rule in the
Submit your comments, identified by Docket ID No. EPA–R06–RCRA–2008–0144 by one of the following methods:
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Alima Patterson, Region 6 Regional Authorization Coordinator, or Julia Banks, Codification Coordinator, State/Tribal Oversight Section (6PD–O), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, Phone number: (214) 665–8533, and e-mail address
States which have received Final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal program changes, the States must change their programs and ask the EPA to authorize the changes. Changes to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. States can also initiate their own changes to their hazardous waste program and these changes must then be authorized.
We conclude that Texas' revisions to its authorized program meet all of the
The effect of this decision is that a facility in Texas subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Texas has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions after notice to and consultation with the State.
This action does not impose additional requirements on the regulated community because the statutes and regulations for which Texas is being authorized by today's action are already effective and are not changed by today's action.
The EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the Proposed Rules section of today's
If the EPA receives comments that oppose this authorization or the incorporation-by-reference of the State program, we will withdraw this rule by publishing a timely document in the
The State of Texas initially received final authorization on December 26, 1984 (49 FR 48300), to implement its Base Hazardous Waste Management Program. This authorization was clarified in a notice published March 26, 1985 (50 FR 11858). Texas received authorization for revisions to its program, effective October 4, 1985 (51 FR 3952), February 17, 1987 (51 FR 45320), March 15, 1990 (55 FR 7318), July 23, 1990 (55 FR 21383), October 21, 1991 (56 FR 41626), December 4, 1992 (57 FR 45719), June 27, 1994 (59 FR 16987), June 27, 1994 (59 FR 17273), November 26, 1997 (62 FR 47947), December 3, 1997 (62 FR 49163), October 18, 1999 (64 FR 44836), November 15, 1999 (64 FR 49673), September 11, 2000 (65 FR 43246), and June 14, 2005 (70 FR 34371).
The State has made amendments to the provisions listed in the document which follows. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting Texas final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA statutory provisions or RCRA regulations found at 40 CFR as of July 1, 2000. The Texas provisions are from the Texas Administrative Code (TAC), Title 30, effective December 31, 2001.
This authorization does not affect the status of State permits and those permits issued by the EPA because no new substantive requirements are a part of these revisions.
Texas is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.
1. There are date errors in the table of program revisions published in the above referenced authorization notice, specific to the following entries:
(a) Throughout the table, the effective date for TWCA ( 5.103, and THSCA §§ 361.017 and 361.024 should be “September 1, 1995”.
(b) For Checklist 135 (Item 1), the effective date for TWCA ( 5.102 should be “Vernon 1988 and 1998 Supplement, effective September 1, 1985”.
(c) For Checklist 137 (Item 3), the effective date for THSCA § 361.003 should be “September 1, 1997”.
(d) For Checklist 140, the reference to “September 18, 1998” following the provision 30 TAC ( 335.29, is incorrect and should be “October 19, 1998”. This correction applies to 30 TAC §§ 335.29(4) and (5).
2. In item 12 on page 44838 of the authorization document, “Checklist 114” should be corrected to read “Checklist 144”.
1. For Checklist 159, the authorization document should include a reference to “335.431(c)” effective November 15, 2001.
2. For Checklist 166, the effective date for 335.24(c)(4)(A)–(C) should be “April 4, 1999” not “April 14, 1999”.
3. For checklist 168, the reference to “305.51(a)(8)” is incorrect and should be “305.51(c)(8)”.
4. For checklist 169 the following corrections should be made:
a. The authorization document entry should include a reference to “335.24(c)(4)(C)”effective November 15, 2001;
b. The authorization document entry should include a reference to “335.29(4)” effective November 15, 2001; and,
c. The authorization document entry should include a reference to “335.221(b)(2)” effective November 15, 2001.
5. For checklist 175 the following corrections should be made:
a. The authorization document entry should include a reference to “305.69(k) D.3.g and M.3” effective November 15, 2001; and,
b. The authorization document entry should include a reference to “335.1 (definition of miscellaneous unit)” effective November 15, 2001.
6. For checklist 181, the authorization document entry should include a reference to “335.1 (definition of lamp)”effective November 15, 2001.
Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.
The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.
The EPA incorporated by reference Texas' then authorized hazardous waste program effective December 3, 1997 (62
The purpose of today's
This document incorporates by reference Texas' hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and federally enforceable program. By codifying Texas' authorized program and by amending the Code of Federal Regulations, the public will be more easily able to discern the status of federally approved requirements of the Texas hazardous waste management program.
The EPA is incorporating by reference the Texas authorized hazardous waste program in subpart SS of 40 CFR part 272. Section 272.2201 incorporates by reference Texas' authorized hazardous waste statutes and regulations. Section 272.2201 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.
The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Texas procedural and enforcement authorities. Section 272.2201(c)(2) of 40 CFR lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.
The public needs to be aware that some provisions of Texas (hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));
(2) Federal rules for which Texas is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference;
(3) Unauthorized amendments to authorized State provisions; and
(4) New unauthorized State requirements.
State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.2201(c)(3) lists the Texas regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by EPA; the State, however, may enforce such provisions under State law.
Texas has adopted but is not authorized for the following Federal rules published in the
Additionally, Texas' hazardous waste regulations include amendments which have not been authorized by the EPA. Since the EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by the EPA include amendments to previously authorized State regulations as well as new State requirements.
In those instances where Texas has made unauthorized amendments to previously authorized sections of State code, the EPA is identifying in 40 CFR 272.2201(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by the EPA. Those unauthorized portions of the State regulations are not Federally enforceable. Thus, notwithstanding the language in Texas hazardous waste regulations incorporated by reference at 40 CFR 272.2201(c)(1), the EPA will only enforce those portions of the State regulations that are actually authorized by the EPA. For the convenience of the regulated community, the actual State regulatory text authorized by the EPA for the citations listed at 272.2201(c)(4) (i.e., without the unauthorized amendments) is compiled as a separate document,
State regulations that are not incorporated by reference in today's rule at 40 CFR 272.2201(c)(1), or that are not listed in 40 CFR 272.2201(c)(3) (“broader in scope”) or 40 CFR 272.2201(c)(4) (“unauthorized amendments to authorized State provisions”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.
With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.
The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.
Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.
Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.
The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, this action is not subject to review by OMB. This rule incorporated by reference Texas' authorized hazardous waste management regulations, and imposes no additional requirements beyond those imposed by State law. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This action 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 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).
This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution or Use” (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), the EPA grants a State's application for incorporation by reference as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State incorporation by reference application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply. The final rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This notice is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
EPA is granting final authorization under part 271 to the State of Texas for revisions to its hazardous waste
Sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), the EPA granted Texas final authorization for the following elements as submitted to EPA in Texas' Base program application for final authorization which was approved by EPA effective on December 26, 1984. Subsequent program revision applications were approved effective on October 4, 1985, February 17, 1987, March 15, 1990, July 23, 1990, October 21, 1991, December 4, 1992, June 27, 1994, November 26, 1997, December 3, 1997, October 18, 1999, November 15, 1999, September 11, 2000, June 14, 2005, and December 29, 2008.
(b) The State of Texas has primary responsibility for enforcing its hazardous waste management program. However, EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.
(c)
(i) The Binder entitled “EPA Approved Texas Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program”, dated June 2005
(ii) [Reserved]
(2) The following provisions provide the legal basis for the State's implementation of the hazardous waste management program, but they are not being incorporated by reference and do not replace Federal authorities:
(i) Texas Health and Safety Code (THSC) Annotated, (Vernon, 2001); Chapter 361, The Texas Solid Waste Disposal Act, sections 361.002, 361.016, 361.017, 361.018, 361.024(e), 361.032, 361.033, 361.036, 361.037(a), 361.061, 361.063, 361.064, 361.066(b), 361.067, 361.068(a), 361.069 first two sentences, 361.078, 361.079, 361.080(a), 361.082(b), 381.082(c) (except second sentence), 361.082(e), 361.083, 361.084 (except 361.084(a) and (c)), 361.084(c) (except the phrase “, or evidence of * * * waste management”), 361.085, 361.088(a) and (b), 361.088(c) (except the phrase “Except as provided by Subsection (e)”, 361.089, 361.090, 361.095(b)–(f), 361.096, 361.097, 361.098(a) (except the phrase “Except as provided in Subsections (b) and (c),”), 361.099(a), 361.100, 361.101, 361.102(a) (except the phrase “Except as provided by Subsections (b) and (c)”), 361.103 through 361.108, 361.109(a), 361.301, 361.321(a) and (b), 361.321(c) (except the phrase “Except as provided by Section 361.322(a)”), 361.321(d), and 361.321(e) (except the phrase “Except as provided by Section 361.322(e)”); Chapter 371, Texas Oil Collection, Management, and Recycling Act, sections 371.0025(b) and (c), 371.024(a), 371.024(c) and (d), 371.026(a) and (b), 371.028, and 371.043(b).
(ii) Texas Health and Safety Code (THSC) Annotated, (Vernon, 2002 Supplement), effective September 1, 2001: Chapter 361, The Texas Solid Waste Disposal Act, sections 361.082(h), 361.084(a), 361.088(g), and 361.114.
(iii) Texas Water Code (TWC), Texas Codes Annotated (Vernon, 2000), effective September 1, 1999, as amended: Chapter 5, sections 5.102 through 5.105, 5.112, 5.351, and 5.501; Chapter 7, sections 7.051(a), 7.053 through 7.062, 7.064 through 7.069, 7.075, 7.101, 7.102, 7.104, 7.107, 7.110, 7.162, 7.163, 7.176, 7.187, 7.189, 7.190, 7.252(1), 7.351, 7.353; Chapter 26, section 26.011; and Chapter 27, sections 27.018 and 27.019.
(iv) Texas Water Code (TWC), Texas Codes Annotated (Vernon, 2002), effective September 1, 2001, as amended: Chapter 5, section 5.177; Chapter 7, sections 7.031, 7.052(a), and 7.102.
(v) Texas Government Code (Vernon, 1998), section 311.027, effective May 11, 1993.
(vi) Texas Administrative Code (TAC), Title 30, Environmental Quality, 1994, as amended, effective through January 1, 1994: Chapter 305, sections 305.91 through 305.93, 305.98, and 305.99.
(vii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 1997, as amended, effective through January 1, 1997: Chapter 281, sections 281.17(d)–(f); Chapter 305, sections 305.29(b)–(d), 305.94 and 305.95, 305.97, 305.100, 305.101 (except 305.101(c)), 305.102, 305.103, and 305.105.
(viii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 2002, as amended, effective through December 31, 2001: Chapter 39, sections 39.13 (except (10)), 39.413 (except (10)); Chapter 50, sections 50.13, 50.19, 50.39, 50.113, 50.119, and 50.139; Chapter 55, sections 55.27 (except (b)), 55.201 (except as applicable to contested case hearings), and 55.211 (except as applicable to contested case hearings); Chapter 70, section 70.10; Chapter 281, sections 281.1 (except the clause “except as provided by * * * Prioritization Process)”), 281.2 introductory paragraph, 281.2(4), 281.3(a) and (b), 281.5 (except the clause “Except as provided by * * * Discharge Permits)” and the phrase “radioactive material”), 281.18(a) (except for the sentence “For applications for radioactive * * * within 30 days.”, 281.19(a) (except the last sentence), 281.19(b) (except the phrase “Except as provided in subsection (c) of this section,”), 281.20, 281.21(a) (except the phrase “and the Texas Radiation Control Act * * * Chapter 401.”), 281.21(b), 281.21(c) (except the phrase “radioactive materials,” in 281.21(c)(2)), 281.21(d) introductory paragraph (except the phrase “and the Texas Radiation Control Act * * * Chapter 401.” and the phrase “For applications for minor amendments * * * summary is not necessary.”), 281.21(d)(1)–(6) (except the phrase “and, for radioactive * * * radiation safety” in 281.21(d)(3)), 281.22(a) (except the phrase “For applications for radioactive * * * to deny the license.”), 281.22(b) (except the phrase “or an injection well,” in the first sentence and the phrase “For underground injection wells * * * the same facility or activity.”), 281.23(a), 281.24; Chapter 305, sections, 305.64(d) and (f), 305.66(c), 305.66(e) (except for the last sentence), 305.66(f)–(l), 305.123 (except the phrase “and 401 * * *
(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, and are not incorporated by reference:
(i) Texas Health and Safety Code (THSC) Annotated, (Vernon 2001): Chapter 361, The Texas Solid Waste Disposal Act, sections 361.131 through 140; Chapter 371, Texas Oil Collection, Management, and Recycling Act, sections 371.021, 371.022, 371.024(e), 371.0245, 371.0246, 371.025, and 371.026(c).
(ii) Texas Administrative Code (TAC), Title 30, Environmental Quality, 2002, as amended, effective through December 31, 2001: Chapter 305, sections 305.53, 305.64(b)(4), 305.127(1)(G); Chapter 335, sections 335.321 through 335.332, and Appendices I and II.
(4)(i)
(ii) The actual State regulatory text authorized by EPA (i.e., without the unauthorized amendments) is available as a separate document,
(5)
(6)
(7)
3. Appendix A to part 272, State Requirements, is amended by revising
The statutory provisions include:
Texas Health and Safety Code (THSC) Annotated, (Vernon 2001): Chapter 361, The Texas Solid Waste Disposal Act, sections 361.003 (except (3), (4), (19), (27), (35), and (39)), 361.066(a), 361.082(a), 361.082(f), 361.086, 361.087, 361.093, 361.094, 361.095(a), 361.099(b), and 361.110; Chapter 371, The Texas Oil Collection, Management, and Recycling Act, sections 371.003, 371.024(b), 371.026(d), and 371.041.
Copies of the Texas statutes that are incorporated by reference are available from West Publishing Company, 620 Opperman Drive, P. O. Box 64526, St. Paul, Minnesota 55164–0526; Phone: 1–800–328–4880; Web site:
The regulatory provisions include:
Texas Administrative Code (TAC), Title 30, Environmental Quality, 2002, as amended, effective through December 31, 2001. Please note that the 2002 TAC, Title 30 is the most recent version of the Texas authorized hazardous waste regulations. For a few provisions, the authorized version is found in the TAC, Title 30, Environmental Quality dated January 1, 1994, January 1, 1997, or December 31, 1999. Texas made subsequent changes to these provisions but these changes have not been authorized by EPA. The provisions from earlier sets of regulations are noted in the table below.
Chapter 20, Section 20.15; Chapter 35, Section 35.402(e); Chapter 39, Sections 39.5(g), 39.11, 39.103(a)(2), (b), (d)(4), and (g), 39.405(f)(1), 39.411 (except (b)(4)(B), (b)(10), (11), and (13)), 39.503(d); Chapter 55, Sections 55.25(b)(1)–(3), 55.152(b), 55.154, and 55.156(b)(1); Chapter 281, Section 281.3(c);
Chapter 305—Sections 305.1(a) (except the reference to Chapter 401, relative to Radioactive Materials); 305.2 introductory paragraph (except the references to Chapter 401, relative to Radioactive Materials), 305.2(1), (6), (12), (13), (16), (17), (21), (25), (27)–(29), (32), and (41)–(43); 305.29(a), (January 1, 1997); 305.30; 305.41 (except the reference to Chapter 401, relative to Radioactive Materials); 305.42(a), (b), and (d); 305.43(b); 305.44 (except (d)); 305.45(a) (except (a)(7)(I) and the phrase “§ 305.54 of this title * * * Content of Applications),” in 305.45(a)(8)(C)); 305.45(b); 305.47; 305.50 introductory paragraph–(3) (except the last two sentences in 305.50(2)); 305.50(4) introductory paragraph and (A); 305.50(4)(B)–(D), (January 1, 1994); 305.50(4)(G); 305.50(5)–(8), (13) and (14); 305.51; 305.61; 305.62(a) (except the phrase in the first sentence “§ 305.70 of this title * * * Solid Waste Class I Modifications” and the phrase in the fifth sentence “If the permittee requests a modification of a municipal solid waste permit * * * § 305.70 of this title.”); 305.62(b); 305.62(c), (January 1, 1997); 305.62(d) (except (d)(6)); 305.62(e)–(h); 305.63(a) introductory paragraph (except first sentence); 305.63(a)(1) and (2); 305.63(a)(3) (except last sentence); 305.63(a)(4)–(6); 305.64(a), 305.64(b) (except (4) and (5)); 305.64(c); 305.64(e); 305.64(g), (December 31, 1999); 305.66(a) (except (7)–(9)); 305.66(d); 305.67 (except (c)); 305.69(a)–(h), (January 1, 1997); 305.69(i)–(k) (except (k) A.8–A.10); 305.121 (except the phrase “radioactive material disposal”); 305.122(a)–(c); 305.124; 305.125 (except (1), (3), the last two sentences in (5), (6), (9)(C), the phrase “as otherwise required by Chapter 336 of this title” relative to Radioactive Substances in (11)(B), (20), and (22)); 305.125(6), (January 1, 1997); 305.127 introductory paragraph; 305.127(1)(B)(iii), (E) and (F); 305.127(2); 305.127(3)(A) (except the last two sentences); 305.127(3)(B) and (C); 305.127(4)(B) and (5)(C); 305.128; 305.141 through 305.145; 305.146 introductory paragraph and (1), (January 1, 1997); 305.150; 305.171 through 305.175; 305.181 through 305.184; 305.191 through 305.194; 305.401(c); 305.571 through 305.573;
Chapter 324—Used Oil—Sections 324.1 through 324.2(6); 324.2(7)–(9), (January 1, 1997); 324.3; 324.4, (January 1, 1997); 324.6; 324.7, (January 1, 1997); 324.11 through 324.14; 324.15, (January 1, 1997); 324.16; 324.21, (January 1, 1997);
Chapter 335, Subchapter A—Industrial Solid Waste and Municipal Hazardous Waste in General—Sections 335.1 introductory paragraph—(4), (6)–(13), (17), (18), (20)–(24), (27), (29), (30), (32)–(39), (40) (except for the phrase “or is used for neutralizing the pH of non-hazardous industrial solid waste”), (41)–(43), (45)–(50), (52)–(58), (61)–(70), (72)–(79), (80)–(85) (except the phrase “solid waste or” in each subsection), (86)–(89), (90) (except the phrase “solid waste or”), (91)–(105), (107) (except the phrase “solid waste”), (108), (112), (113) (except the phrase “solid waste”), (114)–(117); 335.1(119) (December 31, 1999); 335.1(121)–(125), (127), (128), (129)(A)–(G) (except the phrase “Except for materials described in subparagraph (H) of this paragraph.”, at (129)(D) and (G) introductory paragraphs, (129)(I) and (J), (130), (132)–(141) (except the phrase “solid waste or” at (134), (137) and (139)), (142) (except the phrase “or industrial solid”), (143), (144), (145) (except the phrase “or industrial solid”), (146) (except the phrase “or industrial solid”), (148)–(150), (151) (except the phrase “solid waste or”), (152)–(157), (158) (except the phrase “or industrial solid”), (159)–(160), (161) (except the phrase “solid waste or”); 335.2(a) and (c); 335.2(d), (January 1, 1997); 335.2(e)–(g); 335.2(i), (j) and (l); 335.4; 335.5; 335.6(a); 335.6(b), (January 1, 1997); 335.6(c); 335.6(d) and (e), (January 1, 1994); 335.6(f)–(j); 335.7, (December 31, 1999); 335.8(a)(1) and (2); 335.9(a) (except (a)(2) and (3)); 335.9(a)(2) and (3), (January 1, 1997); 335.9(b), (January 1, 1994); 335.10(a) introductory paragraph and (a)(1), (January 1, 1994); 335.10(a)(3) (except the phrase, “unless the generator is identified in paragraph (2) of this section”); 335.10(a)(4); 335.10(a)(6); 335.10(b) (except 335.10(b)(5), (8), and (18)); 335.10(b)(5), (8), and (18), (January 1, 1994); 335.10(c) (except the phrase “the United States customs official,”); 335.10(d)–(f); 335.11 (except 11(d)); 335.12 (except 335.12(a)(5) and (d)); 335.13(a), (January 1, 1997); 335.13(c) and (d), (January 1, 1994); 335.13(e) and (f), (January 1, 1997); 335.13(g), (January 1, 1994); 335.14; 335.15 introductory paragraph, (January 1, 1994); 335.15(1); 335.17(a); 335.18 (except 335.18(b)); 335.19 (except 335.19(d)); 335.20 through 335.22; 335.23 (except 335.23(2)); 335.23(2), (January 1, 1994); 335.24(a)–(f); 335.24(j) and (k); 335.29 through 335.31;
Chapter 335, Subchapter B—Hazardous Waste Management General Provisions—335.41(a)–(h); 335.41(j); 335.43 and 335.44, (December 31, 1999); 335.45; 335.47 (except 335.47(b) and the second sentence in 335.47(c)(3)); 335.47(b), (December 31, 1999);
Chapter 335, Subchapter C—Standards Applicable to Generators of Hazardous Waste—335.61 (except (f)); 335.62; 335.63; 335.65 through 335.69 (except 335.69(i)); 335.70; 335.71, (January 1, 1994); 335.73; 335.74; 335.76 (except 335.76(a), (b)(1), (f) and (h)); 335.76(a), (b)(1), and (f), (January 1, 1997); 335.77; 335.78 (except (b), (d)(2), (e) introductory paragraph, (f)(2), and (g)(2)); 335.78(b), (e) introductory paragraph, (f)(2), and (g)(2), (January 1, 1997);
Chapter 335, Subchapter D—Standards Applicable to Transporters of Hazardous Waste—335.91 (except 335.91(e)); 335.92; 335.93 (except 335.93(e)); 335.93(e), (December 31, 1999); 335.94 (except the phrase “owned or operated by a registered transporter” in (a) introductory paragraph);
Chapter 335, Subchapter E—Interim Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities—335.111; 335.112 (except (a)(7), (a)(17), (b)(4)(I) and (J), and (b)(7)); 335.112(a)(7), (January 1, 1997); 335.113; 335.114, (January 1, 1997); 335.115 introductory paragraph, (January 1, 1997); 335.115 (1)–(4); 335.116; 335.117 (except (a)(2)(B), (a)(2)(C), and (b)(2)); 335.117(a)(2)(B), (a)(2)(C), and (b)(2) (January 1, 1997); 335.118 through 335.127;
Chapter 335, Subchapter F—Permitting Standards for Owners and Operators of Hazardous Waste Storage, Processing, or Disposal Facilities—335.151; 335.152 (except (a)(4), (a)(6), and (c)(5)–(7)); 335.152(a)(4), (a)(6), (January 1, 1997); 335.153; 335.154, (January 1, 1997); 335.155 introductory paragraph, (January 1, 1997); 335.155 (1)–(3); 335.156 through 335.166; 335.167(a); 335.167(b) and (c), (December 31, 1999); 335.168 through 335.178;
Chapter 335, Subchapter G—Location Standards for Hazardous Waste Storage, Processing, or Disposal—335.201 (a) (except (a)(3)); 335.201(c); 335.202 introductory paragraph, (2), (4), (9)–(11), (13), (15)–(18); 335.203; 335.204(a) introductory paragraph—(5); 335.204(b)(1)–(6); 335.204(c)(1)–(5); 335.204(d)(1)–(5); 335.204(e) introductory paragraph; 335.204(e)(1) introductory paragraph (except the phrase “Except as * * * (B) of this paragraph,” and the word “event” at the end of the paragraph); 335.204(e)(2)–(7); 335.204(f); 335.205(a) introductory paragraph—(2) and (e);
Chapter 335, Subchapter H—Standards for the Management of Specific Wastes and Specific Types of Facilities—335.211; 335.212; 335.213, (January 1, 1997); 335.214; 335.221 (except (a)(1)(B)); 335.222 through
Chapter 335, Subchapter O—Land Disposal Restrictions—335.431; Chapter 335, Subchapter R—Waste Classification—335.504 introductory paragraph—(2); 335.504(3) and (4), (December 31, 1999).
Copies of the Texas regulations that are incorporated by reference are available from West Publishing Company, 620 Opperman Drive, P.O. Box 64526, St. Paul, Minnesota 55164–0526; Phone: 1–800–328–4880; Web site:
Federal Communications Commission.
Final rule.
In this document, the Commission clarifies a number of existing rules relating to cable carriage of digital signals. As explained, the carriage elections that must be made by October 1, 2008, will determine a station's carriage rights throughout the entire 2009–2011 carriage election cycle. We also clarify the channel placement options applicable to digital must-carry stations, based upon the
Effective October 29, 2008.
You may submit comments, identified by FCC 08–224, by any of the following methods:
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•
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
For additional information on this proceeding, please contact Lyle Elder,
This is a summary of the Federal Communications Commission's Declaratory Ruling in FCC 08–224, adopted September 24, 2008, and released September 26, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY–A257, Washington, DC 20554. These documents will also be available via ECFS (
1. Pursuant to section 614(b)(4)(B) of the Communications Act of 1934, as amended (the “Act”), the Commission initiated this proceeding in 1998 to address the responsibilities of cable television operators with respect to carriage of digital broadcasters in light of the significant changes to the broadcasting and cable television industries resulting from the Nation's transition to digital television. Now that Congress has established February 17, 2009, as the date certain for the end of analog broadcasts by full-power television licensees, and low-power and class A television licensees are beginning their transition to digital broadcast, we must further clarify the digital carriage responsibilities of cable operators.
2. Specifically, we clarify that the carriage elections that must be made by October 1, 2008, will determine a station's carriage rights throughout the entire 2009–2011 carriage election cycle. We also clarify the channel placement options applicable to digital must-carry stations, based upon the
3. Under the Act, cable systems are presumptively required to carry all local television stations in all television markets they serve. Commercial television stations may, however, choose to be carried pursuant to voluntary retransmission consent agreements rather than by mandatory carriage. Generally, every three years commercial television stations must elect to either grant retransmission consent or pursue their mandatory carriage rights. Noncommercial television stations may only elect mandatory carriage, but are nonetheless free to negotiate carriage with cable operators.
4. In this docket, the Commission has determined the broadcast signal carriage responsibilities of cable television operators during and after the transition is completed. The statutory provision triggering this rulemaking is found in section 614(b)(4)(B) of the Act, which states:
5. At such time as the Commission prescribes modifications of the standards for television broadcast signals, the Commission shall initiate a proceeding to establish any changes in the signal carriage requirements of cable television systems necessary to ensure cable carriage of such broadcast signals of local commercial television stations which have been changed to conform with such modified standards.
6. The Notice of Proposed Rulemaking (“1998 NPRM”) in this proceeding sought to amend the cable television broadcast signal carriage rules, embodied in must-carry and retransmission consent, to accommodate the carriage of digital broadcast television signals.
7. The Commission's
8. In the
9. In February 2005, the Commission issued the
10. The
11. Now, the conclusion of the transition approaches. Therefore, in this Order we explain the carriage election process for stations that will make their final transition from analog signals to digital signals for the February 17, 2009, transition deadline.
12. In addition, although low-power broadcasters are not required to participate in the full-power digital transition, many have chosen to begin their transition. We therefore also take this opportunity to clarify the effect on carriage rights of a voluntary transition to digital by a low-power broadcaster that is qualified for mandatory carriage of its analog signal.
13. As we approach the deadline for the full-power digital transition, we clarify that the full-power carriage elections that must be made by October 1, 2008, will determine a station's carriage rights throughout the entire 2009–2011 carriage election cycle. Low-power broadcasters, while not required to make their transition to digital by February 17, 2009, nevertheless are doing so in increasing numbers, and will continue to do so of their own volition. For those low-power stations that have the right to demand carriage by cable operators, we clarify that their statutory carriage rights apply to digital broadcasting.
14. The Cable Television Consumer Protection and Competition Act of 1992 established the requirement that “television stations, within one year after the date of enactment of [the Act] and every three years thereafter, make an election between the right to grant retransmission consent” to cable operators or the right to mandatory carriage by those cable operators. In compliance with this statutory mandate, the Commission established a regular schedule for carriage elections. The election in 1996 covered 1997–1999, the election in 1999 covered 2000–2002, etc. In accordance with this schedule, the Act requires broadcasters to elect, by October 1, 2008, whether they wish to engage in retransmission consent negotiations with cable operators or demand carriage on their systems for the three year period beginning January 1, 2009. Full-power broadcasters may choose to be carried on all of those cable systems in the same DMA to which they can deliver a good quality signal (must-carry), or they may choose to require those cable systems to seek the broadcaster's consent before carrying the signal (retransmission consent). The broadcaster must notify affected cable systems if electing retransmission consent, or the station's status will default to must-carry. 47 CFR 76.64. As noted above, full-power broadcasters will cease all analog broadcasts by midnight on February 17, 2009.
15. We take this opportunity to clarify that the October 1, 2008, election determines carriage of a station's signal for the entire 2009–2011 carriage cycle. The carriage election rule for stations that voluntarily return their analog spectrum allocation and begin operating as digital-only prior to the 2009–2011 carriage cycle in which the DTV transition concludes provides that “stations that return their analog spectrum allocation and broadcast in digital only shall make their initial election any time between 60 days prior to commencing broadcast and 30 days after * * * commencing broadcasting in digital only; such initial election shall take effect 90 days after it is made.” 47 CFR 76.64(f)(4). If a station elects must-carry on October 1, 2008, for the 2009–2011 carriage cycle, the cable operator(s) will provide carriage of the station's analog signal beginning (or continuing) on January 1, 2009, and concluding no earlier than the actual termination of analog service by that broadcaster. Once the station terminates analog service and begins broadcasting in digital, the carrier shall commence carriage of the station's digital signal without any gap in carriage. To facilitate carriage and the final transition process, beginning January 1, 2009, cable operators must immediately commence carriage of the digital signal of stations that cease analog broadcasting prior to the
16. We clarify that the channel placement options in sections 614(b)(6) and 615(g)(5) of the Act, as implemented in § 76.57 of the Commission's Rules, remain in effect after the digital transition. Section 614(b)(6) of the Act generally provides that commercial television stations carried pursuant to the mandatory carriage provision are entitled to be carried on a cable system on the same channel number on which the station broadcasts over-the-air. Under section 615(g)(5) noncommercial television stations generally have the same right. The Act also permits commercial and noncommercial television stations to negotiate a mutually agreeable channel position with the cable operator. Historically, channel positioning has been part of the carriage election process, with must-carry stations choosing from among the statutory options as part of the must-carry election. 47 U.S.C. 534(b)(6), 535(g)(5). There are four channel positioning options in the Act for commercial television stations. The statutory options are “the channel on which it was carried on July 19, 1985,” “the channel on which it was carried on January 1, 1992,” “the channel number on which the local commercial television station is broadcast over the air”, or any alternative channel by mutual agreement. Noncommercial stations may not elect the channel number on which they were carried on January 1, 1992, but otherwise have identical options.
17. As noted above, one of those statutory options is carriage on the broadcast channel number. In digital broadcasting, a broadcast station's channel number is no longer identified by reference to its over-the-air radio frequency. Instead, in compliance with the ATSC standard, the station's “major channel number” is identified in its program and system information protocol (“PSIP”). The Program and System Information Protocol (“PSIP”) contains metadata about both the program currently being aired and broadcast signal as a whole. One of the most important elements in the PSIP is the Major Channel Number (“MCN”), the channel “location” identified with a given station regardless of its over-the-air broadcast frequency. ATSC receivers (whether a TV set in a home or a receiver at a cable headend) can use this data to determine the information that will be displayed to viewers. Therefore, if the analog signal of a station was broadcast on channel 12, its digital signal will appear on channel 12 when tuned by an over-the-air viewer, even if the signal is being broadcast on a frequency corresponding to, for instance, channel 37.
18. We clarify that any station carried pursuant to mandatory carriage may demand carriage on its major channel number as broadcast in the station's PSIP. We also clarify that although the
19. NCN Cable Advertising, licensee of WKFK–LP, Pascagoula, Mississippi (“WKFK”), filed a petition for a declaratory ruling that the FCC's cable must-carry rules apply to the digital signals of Class A, LPTV and TV translator stations after those stations flash-cut to digital operation and cease operating their analog signals. Currently, our Rules provide for cable carriage of low-power stations (including Class A) in specific and limited circumstances. WKFK argues that a clarifying order is necessary to eliminate uncertainty about digital carriage rights for low-power stations. WKFK is not seeking new or additional carriage for low-power stations but rather a confirmation that low-power stations will have the same carriage rights for their digital signals as they currently have for their analog signals. In addition, WKFK wants low-power stations to have the same downconversion option for their digital-only signals as digital-only full-power stations have for their digital signals.
20. Under Section 614(c) of the Act and § 76.56(b)(3) of our Rules, a cable operator is, in some circumstances, required to carry the signal of one or two “qualified low-power stations.” Like full-power commercial broadcast stations, low-power stations can earn must-carry status with regard to a specific cable system by conforming to a series of requirements (laid out in section 614(h)(2) of the Act). 47 U.S.C. 534(h)(2). The Commission's Rules implementing this section state that a low-power station becomes qualified for mandatory carriage if the station conforms to the Commission's LPTV rules, broadcasts for at least the minimum number of hours required of commercial broadcast stations by the Commission, and adheres to certain Commission requirements regarding non-entertainment programming and employment. However, an LPTV station will not be qualified unless the Commission determines that the provision of programming by such station would address local news and informational needs not being adequately served by full-power television stations, because such full-power stations are distant from the LPTV station's community of license. In addition, the LPTV station must comply with the Commission's interference regulations for LPTV stations; it must be within 35 miles of the cable system's principal headend and deliver to the headend a good quality over-the-air signal; its community of license and the franchise area of the cable system must both have been located outside of the largest 160 Metropolitan Statistical Areas (“MSAs”) on June 30, 1990, and the population of the LPTV station's community of license on that date must not have exceeded 35,000; and there cannot be any full-power television station licensed to any community
21. Although the
22. Although the language of the Act and our Rules does not distinguish between analog and digital-only stations, we do find that the Note to § 76.55(d) is no longer fully accurate, as it addresses only the signal strength of analog signals. Just as for commercial full-power stations, the Note currently states that a good quality signal level for analog is −45 dBm for UHF signals and −49 dBm for VHF signals. The Cable Act, which established the −45/−49 dBm standard for commercial full-power stations, is silent on the definition of “good quality signal” for the purposes of carriage of low-power stations. Acknowledging this, in a
23. In line with the Commission's consistent practice of aligning the “good quality signal” standards for commercial, noncommercial, and low-power stations, we find good cause to adopt, on a temporary basis, a digital signal strength requirement for carriage of low-power stations also using −61 dBm at the cable system headend. WKFK's Petition makes clear that a delay in resolution of this question could inhibit investment on the part of low-power station owners who seek to transition their stations to digital. As discussed above, there is ample history supporting an alignment of the full-power and low-power standards, and thus no basis on which an industry participant might have reasonably assumed that there would be a distinction between them in digital. Furthermore, the Commission sought comment on what would constitute a “good quality signal” for all digital signals in the
24. In light of this clarification, we grant WKFK's request for a declaratory ruling. If WKFK begins broadcasting in digital-only, it will have rights of carriage on the systems on which it may now demand carriage, so long as it provides a signal strength of −61 dBm at each system's headend.
25. It is ordered that, pursuant to the authority contained in sections 1, 4, 303, 614, and 615 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 303, 534, and 535, this
26. It is further ordered that the Petition for Declaratory Ruling filed by NCN Cable Advertising, licensee of WKFK–LP, Pascagoula, Mississippi, is granted to the extent described herein.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, the National Marine Fisheries Service (NMFS), publish this final rule to apply all the prohibitions enumerated in section 9(a)(1) of the Endangered Species Act (ESA) to elkhorn (
The effective date of this rule is November 28, 2008.
NMFS, Southeast Regional Office, Protected Resources Division, 263 13th Ave. South, St. Petersburg, FL 33701–5505.
Jennifer Moore or Sarah Heberling, NMFS, Southeast Region, at the address above or at (727) 824–5312, or Marta Nammack, NMFS, Office of Protected Resources, at (301) 713–1401. Reference materials and supporting documents regarding this rule are available upon request or on the Internet at
On May 9, 2006, we published a final rule listing elkhorn (
Section 4(d) of the ESA provides that, whenever a species is listed as threatened, the Secretary of Commerce (Secretary) shall issue such regulations as the Secretary deems necessary and advisable to provide for the conservation of the species. Such regulations may include any or all of the prohibitions in ESA section 9(a)(1) that apply automatically to species listed as endangered. Those section 9(a)(1) prohibitions make it unlawful, with limited specified exceptions, for any person subject to the jurisdiction of the United States to: “(A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.” Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or regulations issued under the ESA.
On December 16, 2007, we proposed protective regulations under section 4(d) of the ESA to apply all the prohibitions enumerated in section 9(a)(1)(A)-(F) of the ESA to these two coral species, with limited exceptions for two specified classes of activities that contribute to the conservation of the listed corals. In
Below we address the comments received pertaining to the proposed 4(d) rule for the Acroporid corals.
With regard to the comments identifying specific examples of activities that may constitute violations of the prohibitions, we reiterate that the fact that activities fall within one of the categories does not mean that a specific activity is a per se violation. Activities that do not result in take do not constitute violations.
The project modifications were identified as those already being implemented for beach renourishment projects as well as those described in the Report from the Southeast Florida Coral Reef Initiative Maritime Industry and Coastal Construction Impacts Workshop (TetraTech, 2007). The project modifications were also identified as the activities that may be necessary or appropriate to minimize the impact of incidental take on the two listed species of corals. It was not our intention that all project modifications identified for a particular category of activity be implemented for all individual projects. Rather, whether a particular project modification is imposed will depend on the specifics of the individual project. Further, project modifications, here likely imposed as RPMs through section 7 consultation, must be commensurate with the project for which they are imposed and cannot alter the basic design, location, scope, duration, and timing of the action and may only involve minor changes (50 CFR 402.14(i)(2)). Therefore, whether we impose a particular project modification will depend on whether that modification is necessary and appropriate in that instance and will take into consideration the physical coastal processes within the proposed action area. Lastly, as discussed in the RIR, consultation is already required if beach nourishment projects may affect the listed corals, and we do not expect that identification of RPMs will measurably increase the time required to complete consultation and delay project permitting.
We did not discuss the benefits to local economies of existing ports because we do not believe that there will be a change in the benefits the ports provide as a result of this rule. The imposition of project modifications must be reasonable and prudent for the particular project being proposed.
We evaluated the DNER's research permitting program criteria and found the program to provide for the conservation of the species and to have requirements commensurate with the ESA section 10(a)(1)(A) permit. The comments received did not provide specific information to warrant reconsidering our determination. Further, eliminating redundant permitting requirements where state and Federal permitting programs already exist and provide for the conservation of the species will improve administrative efficiency, reduce regulatory burdens on research and enhancement activities, and thereby facilitate collection of scientific information and advance the recovery of these species.
We also proposed that import of elkhorn and staghorn coral necessary to conduct scientific research and enhancement activities would be excepted from the section 9(a)(1)(A) import prohibition. However, section 9(c) of the ESA specifically addresses the importation of species listed under Appendix II of CITES. This section provides that species listed as threatened under the ESA that are also included in Appendix II of the Convention, may be imported into the United States provided that all applicable requirements of CITES have been satisfied and the importation is not made in the course of a commercial activity. Because elkhorn and staghorn corals are listed under Appendix II of CITES, compliance with section 9(c) is required for the import of elkhorn and staghorn corals into the United States. Thus, we are not providing an exception to the section 9(a)(1)(A) import prohibition through this rulemaking, and we have removed the word “import” from the exception for scientific research and enhancement. We have also added an explicit reference to the statutory exception to the import prohibition provided by section 9(c) of the ESA.
The exception to the ESA section 9(a)(1)(A) prohibition on export provided in this rule allows for the export of elkhorn or staghorn corals from the United States if the applicable CITES permit has been obtained from FWS, as long as the purpose of the export is for scientific research or enhancement. Proof of the purpose of the export will be a copy of the valid collection permit from the applicable agency. The application of the exception from the export prohibition for scientific research and enhancement is consistent with the commenter's intent, because only one agency, FWS, has the authority to issue the required CITES export permit.
In our proposed rule, and as amended in this rule, we defined restoration activity as “the methods and processes used to provide aid to injured individuals.” The establishment or maintenance of coral nurseries does not fit within this limited definition. We believe in many cases a coral nursery may qualify for the research and enhancement exceptions at 223.208(c)(1) or (c)(3). In addition, please see our
In addition to the specific comments detailed above relating to the proposed 4(d) rule, the following were also
Based on the comments received, we have made three substantive changes to the proposed rule. As discussed in the
Whether ESA section 9(a)(1) prohibitions or other regulations are necessary and advisable to provide for the conservation of a species depends in large part upon the biological status of the species, the potential impacts of various activities on the species, and on factors such as the existence and efficacy of other conservation activities. The two acroporid coral species have survived for millions of years through cycles in ocean conditions and climate. However, as a part of the listing process, we concluded their abundances have been dramatically reduced to less than three percent of former population levels by disease, elevated sea surface temperature, and hurricanes. Additionally, given the extremely reduced population sizes of these species, we determined that the following lesser stressors contribute to the threatened status of the species: sedimentation, anthropogenic abrasion and breakage, competition, excessive nutrients, predation, contaminants, loss of genetic diversity, African dust, elevated carbon dioxide levels, and sponge boring. We concluded that, within the jurisdiction of the United States, existing regulations have abated the threat posed by collection of the two species; however, existing regulatory mechanisms are inadequate to abate the myriad other threats causing the species' threatened status. Although elkhorn and staghorn corals are not currently endangered, they are likely to become so within the foreseeable future because of a combination of four of the five factors listed in section 4(a)(1) of the ESA, and this status is not sufficiently ameliorated by state or foreign government efforts to protect the species. Therefore, we have determined it is necessary and advisable in most circumstances to apply the section 9 prohibitions to both these threatened coral species, in order to provide for their conservation.
As discussed above, the two coral species have declined to less than three percent of their former abundances and are currently impacted by myriad stressors that act simultaneously on the species throughout their ranges. We determined the major stressors (i.e., disease, elevated sea surface temperature, and hurricanes) to these species' persistence are severe, unpredictable, likely to increase in the foreseeable future, and, at current levels of knowledge, unmanageable. While the lesser stressors, enumerated above, have not been the primary causes of the species' decline, managing them will contribute to the conservation of the two species by slowing the rate of decline and reducing the synergistic effects of multiple stressors on the species. Therefore, we believe that the ESA section 9(a)(1) prohibitions are necessary and advisable for the conservation of threatened elkhorn and staghorn corals, specifically to address the lesser stressors that are amenable to management. We believe that the prohibitions are not necessary and advisable in specific circumstances, and we implement specific exceptions for exportation and take, which are more fully described in the next section. Below is our discussion of the section 9 prohibitions that we extend to the two listed corals.
Section 9(a)(1)(A) prohibits the importation and exportation of endangered species to or from the United States. We believe that it is necessary and advisable to extend this prohibition to elkhorn and staghorn corals. Existing laws prohibit and restrict extraction and trade of live elkhorn and staghorn corals. International agreement restricts international trade of both elkhorn and staghorn corals (CITES). Federal regulations prohibit harvest or possession of elkhorn or staghorn coral in Federal waters (e.g., regulations implementing the Caribbean and Gulf of Mexico and South Atlantic Coral Fisheries Management Plans at 50 CFR part 622), and the Lacey Act prohibits trade of illegally obtained specimens. Sale of coral extracted from any waters is illegal in the U.S.V.I, Puerto Rico, and Florida, except that the sale of live elkhorn and staghorn corals extracted from Florida waters (F.A.C. 68B–42.009(2)) or the Exclusive Economic Zone (EEZ) (50 CFR 622.41) is legal when these corals are products of aquaculture (e.g., the corals have settled and grown on live rock products). Thus, this rule prohibits an activity that is currently allowed under Florida law and the Federal Magnuson-Stevens Fishery Conservation and Management Act. Neither threatened coral species, however, is a product of commercial aquaculture anywhere within the United States, nor is there a directed market for either elkhorn or staghorn corals. More information on the specific Federal, state, and local laws and regulations concerning the import and export of corals is available in the Atlantic Acropora Status Review Document (BRT, 2005) and the RIR for this rule.
As discussed in the status review document, prior to listing the two species as threatened under the ESA, we determined that there was no evidence of extraction of live specimens from Federal or state waters, nor evidence of trade of live specimens taken from foreign waters and imported into the United States for aquaria or other uses. Lack of extraction and trade of live specimens prior to the listing of these corals can be attributed mostly to existing laws and regulations. However, it is possible that the ESA listing might encourage a black market for the trade of these species, as evidenced by the trade of other threatened and endangered species (e.g., sturgeon eggs, elephant ivory). The increased public exposure to these rare corals due to the ESA listing may make the two species more desirable for aquaria or other uses. Therefore, to prevent this activity and to support existing regulations concerning the import and export of these corals, we find it necessary and advisable to extend the ESA section 9(a)(1)(A)
Section 9(a)(1)(B) of the ESA prohibits the take of endangered species within the United States or the territorial sea of the United States, and section 9(a)(1)(C) of the ESA prohibits the take of endangered species upon the high seas for any person subject to the jurisdiction of the United States. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Activities that constitute harm may include significant habitat modification or degradation that actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns including breeding, spawning, rearing, migrating, feeding, or sheltering (50 CFR 222.102). At the time of the drafting of the ESA, the high seas were defined as those waters not under any country's legal jurisdiction, and no country had yet designated an EEZ (i.e., 200 nautical miles (370.4 km)). Thus, “take on the high seas” is interpreted as take beyond any country's territorial seas. Based on available information, the territorial seas of countries within the range of the two threatened coral species end no more than 12 nautical miles NM (22.2 km) offshore (See, “Table of claims to maritime jurisdiction” as of December 29, 2006, at
A range of private and public activities have the potential to result in take of the listed corals, including recreational and commercial activities. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Protecting listed corals from all direct forms of take, such as physical injury or killing, will help preserve the species' remaining populations and slow their rate of decline. Protecting listed corals from indirect forms of take, such as harm that results from habitat degradation, will likewise help preserve the species' populations and also decrease synergistic, negative effects from other stressors. We therefore propose to extend the ESA section 9(a)(1)(B) prohibition to elkhorn and staghorn corals to manage for these threats. There are likely few locations where elkhorn and staghorn corals occur farther than 12 NM (22.2 km) from land, because corals cannot typically survive in these depths. However, due to the dramatic decline in abundance and the myriad threats facing them, it is necessary and advisable for these species' conservation to protect the species from take everywhere they occur, including on the high seas, and thus we propose extending the ESA section 9(a)(1)(C) prohibition to the listed corals. Ensuring that take is prohibited everywhere the corals may be found will also avoid difficulty in enforcing these regulations based on claims about the origin of coral specimens.
Sections 9(a)(1)(D), (E), and (F) of the ESA prohibit, among other things, the possession, sale, and transport of endangered species that are taken illegally or that are entered into interstate or foreign commerce. For the same reasons discussed above regarding the prohibition pursuant to ESA section 9(a)(1)(A), it is necessary and advisable to extend these prohibitions to the two corals. The ESA listing of these two species may make them a desirable commodity and encourage a black market. Therefore, the extension of these prohibitions will discourage the development of a black market and reinforce existing regulations on commercial activities involving corals.
Lastly, we extend the section 9(a)(1)(G) prohibition against violating this and any other regulations we promulgate pertaining to these two corals.
The ESA allows for specific exceptions to the section 9 prohibitions through interagency consultation as prescribed by ESA section 7, a permit issued pursuant to section 10, or compliance with the requirements for imports of CITES-listed species pursuant to section 9(c). With the finalization of this rule, these exceptions apply.
Section 7 of the ESA requires all Federal agencies to consult with us if actions they fund, authorize, or carry out may affect threatened corals or any other species listed under the ESA. We consult on a broad range of activities conducted, funded, or authorized by Federal agencies. These activities include, but are not limited to, national water quality standards and discharge permits, coastal and nearshore construction, the dredge or discharge of fill material, navigation regulation, fishery regulation, and live-rock aquaculture. Incidental take of these two threatened corals that results from federally funded, authorized, or implemented activities for which section 7 consultations are completed, will not constitute violations of section 9 prohibitions against take, provided the activities are conducted in accord with all RPMs and terms and conditions contained in any biological opinion and incidental take statement.
Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide us with the authority to grant exceptions to the ESA's prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may authorize exceptions to any of the section 9 prohibitions and may be issued to Federal and non-Federal entities conducting research or conservation activities that involve a directed take of listed species. A directed take refers to the intentional take of listed species. Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities performing activities that may incidentally take listed species in the course of an otherwise lawful activity; these permits provide an exception to the section 9(a)(1)(B) prohibitions.
Section 9(c) of the ESA allows for the importation of species listed as threatened under the ESA that are also listed in Appendix II of CITES, provided that all the requirements of CITES have been satisfied and the import is not in the course of a commercial activity.
We determined that in certain circumstances described below, extending the ESA section 9(a)(1)(A), (B), and (C) prohibitions to elkhorn and staghorn corals is not necessary and advisable. We except these prohibitions for two classes of activities that provide for the conservation of listed corals. Under specified conditions, (1) scientific research and enhancement activities conducted under six specific existing Federal, state, or territorial research permitting programs are excepted from the section 9(a)(1)(A) export, and subsections (B) and (C) take prohibitions; and (2) restoration activities carried out by an authorized (under current laws) Federal, state, territorial, or local natural resource agency are excepted from the section 9(a)(1)(B) and (C) take prohibitions. These exceptions are described in more detail in the following sections. These classes of activities are not excepted from the Section 9(a)(1)(D) through (F) prohibitions because allowing commercial activities does not provide for the conservation of the two species. The 9(a)(1)(G) prohibition applies to these activities so that it is unlawful to violate this rule or subsequent rules that we may promulgate under the ESA and pertaining to the corals.
This exception applies to both threatened corals covered by this rule. In carrying out their resource
The following six agencies have permit programs that include corals, and we have evaluated these programs and found that they provide for the conservation of the listed corals: National Ocean Service (National Marine Sanctuary Program), National Park Service, FWS, Florida Fish and Wildlife Conservation Commission, Puerto Rico DNER, and the U.S.V.I. Department of Planning and Natural Resources (DPNR). We compared each of these programs' substantive and procedural requirements to ESA section 10(a)(1)(A) scientific research and enhancement permit regulations. Review of the permitting process used by each of the six specific programs identified above revealed that each of these permit programs allow research activities that yield sufficient data to support the research objectives while limiting, to the maximum extent practicable, the amount of resources collected or impacted. We determined that the programs are restrictive enough to provide important conservation benefits to the listed corals without the additional requirements of section 10(a)(1)(A) scientific research permits. Additionally, we reviewed examples of the types of acroporid research that have been permitted in the past by these agencies (e.g., gene flow, disease etiology) and concluded that the continuation and future permitting of these types of research will provide for the conservation of these species by improving our understanding of the status and risks facing these threatened corals and by providing critical information for assessing the effectiveness of current and future management practices. Each of these permit programs has application requirements similar to those of the ESA section 10 permitting program. Each requires detailed background information, justifications, and descriptions of expected impacts prior to approval for all proposed scientific research. Additionally, each of these permitting programs has data reporting requirements and the ability to apply stringent terms and conditions on issued permits. If research directed at elkhorn and staghorn coral is in compliance with one of the permit programs listed above, any exportation or take that occurs under such a permit would not constitute a violation of the prohibitions, and an ESA section 10(a)(1)(A) permit would not be required. A copy of the issued permit must be carried and available for inspection during the research or enhancement activity. Further, if export is necessary to conduct the research or enhancement activities excepted from the prohibitions by this rule, a CITES permit must be obtained and a copy of the applicable collection permit will provide proof of the purpose of the collection.
This exception applies to both threatened corals and would except certain Federal, state, and territorial agency personnel, or their designees as applicable, from the prohibitions on taking when they are performing specific restoration activities directed at the listed corals under an existing legal authority that provides for such restoration. For purposes of this exception, a “restoration activity” is the methods and processes used to provide aid to injured individual elkhorn or staghorn corals. For example, reattachment of colonies or fragments dislodged or broken by vessel groundings onto suitable hard substrates would be excepted from the prohibition when it is implemented under an existing legal authority. Thus, Florida Keys National Marine Sanctuary staff actions under the National Marine Sanctuaries Act's authority to undertake all necessary actions to prevent or minimize the destruction or loss of, or injury to, sanctuary resources (16 U.S.C. 1441
Several Federal, state, and territorial government agencies have authorization to engage in the specific type of restoration activities covered by this exception. We have included response removal, or remedial authority under several Federal statutes in this exception, because one or more of these authorities have been interpreted to include the type of natural resource restoration activity described above; for example, actions required to respond to a substantial threat of a discharge may dislodge or break coral fragments, and reattaching those fragments are legitimate response activities. The following table lists the authorizing statute, the specific provision, and specific agencies or offices authorized under existing statutes to implement the coral restoration activities defined in this exception.
On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within a species' range. We must identify to the extent known, specific activities not considered likely to result in violations of section 9, as well as activities that will be considered likely to result in violations. We believe that, based on the available information, the following actions will not result in a violation of section 9:
1. Collection, handling, and possession of listed corals that are acquired lawfully through an ESA section 10(a)(1)(A) permit or through one of the exceptions in this rule; or
2. Activities that result in incidental take authorized by an incidental take statement issued through a biological opinion pursuant to section 7 or permitted through section 10(a)(1)(B) of the ESA.
Based on available information, we believe the following categories of activities are those most likely to result in a violation of the ESA section 9 prohibitions. We emphasize that whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. The mere fact that an activity may fall within one of these
1. Removing, damaging, poisoning, or contaminating elkhorn or staghorn corals.
2. Removing, poisoning, or contaminating plants, wildlife, or other biota required by listed corals for feeding, sheltering, or other essential behavioral patterns.
3. Harm to the species' habitat resulting in injury or death of the species, such as removing or altering substrate, vegetation, or other physical structures.
4. Altering water flow or currents to an extent that impairs spawning, feeding, or other essential behavioral patterns of listed corals.
5. Discharging pollutants, such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens, or organic nutrient-laden water, including sewage water, into listed corals' habitat to an extent that harms or kills listed corals.
6. Releasing non-indigenous or artificially propagated species into listed corals' habitat or locations from where they may access the habitat of listed corals.
7. Activities conducted in shallow water coral reef areas, including boating, anchoring, fishing, recreational SCUBA diving, and snorkeling, that result in abrasion of or breakage to the listed corals.
8. Interstate and foreign commerce dealing in listed corals, and importing or exporting listed corals other than for permitted scientific research or enhancement.
9. Shoreline and riparian disturbances (whether in the riverine, estuarine, marine, or floodplain environment) that may harm or kill listed corals, for instance by disrupting or preventing the reproduction, settlement, reattachment, development, or normal physiology of listed corals. Such disturbances could include land development, run-off, dredging, and disposal activities that result in direct deposition of sediment on corals, shading, or covering of substrate for fragment reattachment or larval settlement.
10. Activities that modify water chemistry in coral habitat to an extent that disrupts or prevents the reproduction, development, or normal physiology of listed corals.
11. Local activities that result in elevated water temperatures in coral habitat that cause bleaching or other degradation of physiological function of listed corals. For example, in our economic analysis of this rule, we identified discharges of cooling water effluent from power plants as an activity that may result in elevated sea surface temperature.
This list provides examples of the types of activities that could have a high risk of causing a violation, but it is by no means exhaustive. It is intended to help people avoid violating the ESA and to encourage efforts to recover the threatened corals addressed in this rule.
Persons or entities concluding that their activity is likely to violate the ESA are encouraged to immediately adjust that activity to avoid violations and to seek authorization under: (a) an ESA section 10(a)(1)(B) incidental take permit; (b) an ESA section 10(a)(1)(A) research and enhancement permit; or (c) an ESA section 7 consultation. The public is encouraged to contact us (see
In making a determination that it is not necessary and advisable to impose ESA section 9 take prohibitions on certain activities, we recognize that new information may require a reevaluation of that conclusion. For any of the exceptions from the prohibitions described in this rule, we will evaluate periodically the activity's effect on the conservation of listed corals. If we determine that it becomes necessary and advisable for the conservation of the species, we will impose take prohibitions, through appropriate rulemaking, on the activities previously excepted.
Based on the status of the species and the threats affecting them, we believe that the ESA section 9(a)(1) prohibitions are necessary and advisable for the conservation of threatened elkhorn and staghorn corals. We believe that the prohibitions are not necessary and advisable in specific circumstances, and we are providing two exceptions for scientific research and enhancement and restoration activities, when conducted by specified entities under specified legal authorities.
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. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. We did not receive
This rule has been determined not to be significant under Executive Order (E.O.) 12866.
We prepared a final regulatory flexibility analysis (FRFA), pursuant to section 604 of the Regulatory Flexibility Act (5 U.S.C. 601
In the FRFA, we found that, given existing Federal, state, or local laws that in some form or another prohibit take, possession, or sale of, and/or damage to, corals, few private activities that are now legal would have to be altered or abandoned. Puerto Rico and U.S.V.I. law prohibit the take and sale of elkhorn and staghorn corals. Florida law (F.A.C. 68B–42.009(2)) and Federal regulations (50 CFR 622.41) prohibit take of these corals, with an exception provided for corals that attach to rock placed by aquaculture operations (i.e., live rock) that have appropriate permits. There is no historical evidence of any live rock operations selling live rock with these species attached in the past 10 years of observations reported by live rock producers. Existing regulations allow sales of dead elkhorn or staghorn coral skeletons with proof that the specimens were not taken illegally. There is anecdotal evidence that Florida shell shops have sold dead specimens of
It is anticipated that, on average, approximately 44 non-Federal grantees or permittees, or their contractors, could be affected annually with the implementation of this rule. Historically, the projects undertaken by these entities 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, National Pollutant Discharge Elimination System (NPDES)/water quality standards, cable installation, beach renourishment, shoreline stabilization, reef ball construction and installation, and port construction. Our database does not track whether applicants have been small entities or any particulars that would allow us to make such a determination, so it is impossible to determine the number of future grantees, permittees, or contractors that may be small entities. There is no indication that affected project applicants or their contractors would be limited to, nor disproportionately comprised of, small entities.
The rule will not result in an increase in the number of ESA section 7 consultations; rather, any additional costs would result from the identification and implementation of RPMs to minimize the effects of the action on the listed species. Based on our experience with section 7 consultations for other species, incremental administrative costs of identifying RPMs will be negligible, compared to the analytical requirements and associated costs already required by the duty to consult to ensure the action does not jeopardize listed species. Hence, we have assumed there will be no administrative costs of consultation associated with this rule. Though we have characterized the costs in the RIR/FRFA associated with individual types of RPMs for the projected future activities, no total cost of this rule can be identified because the lack of specific information on the design and location of projected future projects limits our ability to forecast the exact type and amount of modifications required. However, the majority of the RPMs that NMFS would likely specify for these actions are currently required by other regulatory agencies. In addition, current ESA regulations require that RPMs cannot alter the basic design, location, scope, duration, and timing of an action and may only involve minor changes.
We considered four alternatives for extending section 9(a)(1) prohibitions to threatened corals. These included a preferred alternative (i.e., this rule), a no action alternative, and two additional alternatives. The no action alternative was not selected because it did not meet the conservation objectives of the section 4(d) of the ESA. The remaining two alternatives (Alternatives B and C) were not selected because they (1) were judged to have less conservation value for the corals, and (2) could result in smaller annual incomes generated by small businesses that rely on resident and visitor use of coral reefs. Alternative B, in addition to the exceptions from the ESA section 9 prohibitions for conservation research and restoration included in the preferred alternative, would except incidental take from the take prohibitions where such take results from activities managed under a NMFS-approved management plan. Persons engaged in activities covered by an approved management plan would not be required to obtain an ESA section 10 incidental take permit. This alternative would be expected to have the same costs of implementing section 7 RPMs as the preferred alternative. However, this alternative was predicted to result in increased take of these species, and thus smaller annual incomes generated from small businesses, such as those in the tourism sector, that rely on resident and visitor use of coral reefs. Alternative C would eliminate the exception for research and restoration activities and require Federal, State, territorial, and local governments or their designees to acquire an ESA section 10 permit for restoration activities directed at listed corals, even when emergency actions are warranted to save either listed coral as a result of a natural or technological disaster or other event that has injured these corals. This alternative is also expected to have the same costs of implementing section 7 RPMs as the preferred alternative. Similar to Alternative B, the resulting increase in mortality of these corals could reduce revenues received from small businesses that benefit from resident and tourist use of coral reefs.
This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.
This 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.
Endangered and threatened species, Exports, Imports, Transportation.
16 U.S.C. 1531 1543; subpart B, § 223.201 202 also issued under 16 U.S.C. 1361
(a)
(2) It is unlawful for any person subject to the jurisdiction of the United States to do any of the following:
(i) Fail to comply immediately, in the manner specified at § 600.730 (b) through (d) of this title, with instructions and signals specified therein issued by an authorized officer, including instructions and signals to haul back a net for inspection;
(ii) Refuse to allow an authorized officer to board a vessel, or to enter an area where fish or wildlife may be found, for the purpose of conducting a boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section;
(iii) Destroy, stave, damage, or dispose of in any manner, fish or wildlife, gear, cargo, or any other matter after a communication or signal from an authorized officer, or upon the approach of such an officer or of an enforcement vessel or aircraft, before the officer has an opportunity to inspect same, or in contravention of directions from the officer;
(iv) Assault, resist, oppose, impede, intimidate, threaten, obstruct, delay, prevent, or interfere with an authorized officer in the conduct of any boarding, search, inspection, seizure, investigation, or arrest in connection with enforcement of this section;
(v) Interfere with, delay, or prevent by any means, the apprehension of another
(vi) Resist a lawful arrest for an act prohibited by this section;
(vii) Make a false statement, oral or written, to an authorized officer or to the agency concerning applicability of the exceptions enumerated in paragraph (c) of this section relating to elkhorn and staghorn corals;
(viii) Make a false statement, oral or written, to an authorized officer or to the agency concerning the fishing for, catching, taking, harvesting, landing, purchasing, selling, or transferring fish or wildlife, or concerning any other matter subject to investigation under this section by such officer, or required to be submitted under this part 223; or
(ix) Attempt to do, solicit another to do, or cause to be done, any of the foregoing.
(b)
(c)
(1) Permitted scientific research and enhancement. Any export or take of elkhorn or staghorn corals resulting from conducting scientific research or enhancement directed at elkhorn and staghorn corals is excepted from the prohibitions in ESA sections 9(a)(1)(A), (B) and (C) provided a valid research or enhancement permit has been obtained from one of the following Federal or state agencies: NOAA National Ocean Service National Marine Sanctuary Program, National Park Service, U.S. Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Puerto Rico Department of Natural and Environmental Resources, or the U.S. Virgin Islands Department of Planning and Natural Resources. The exportation or take must be in compliance with the applicable terms and conditions of the applicable research or enhancement permit, and the permit must be in the possession of the permittee while conducting the activity. Export of elkhorn or staghorn corals from the United States to conduct excepted research or enhancement activities requires a CITES export permit from the U.S. Fish and Wildlife Service in addition to the research permit for collection. Import of elkhorn or staghorn corals into the United States to conduct excepted research or enhancement activities must be in compliance with the provisions of section 9(c) of the ESA.
(2) Restoration activities. Any agent or employee of governmental agencies listed in Table 1 may take listed elkhorn or staghorn corals without a permit, when acting in the course of conducting a restoration activity directed at elkhorn or staghorn coral which is authorized by an existing authority (see Table 1 to this section). Take of elkhorn or staghorn corals during such restoration activity is excepted from the prohibitions in ESA sections 9(a)(1)(B) and (C). An excepted restoration activity is defined as the methods and processes used to provide aid to injured individual elkhorn or staghorn coral.
(3) Section 10 scientific and enhancement permits. The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 223.208(a) for scientific purposes or to enhance the propagation or survival of elkhorn or staghorn corals, in accordance with and subject to the conditions of part 222, subpart C-General Permit Procedures.
(4) Section 10 incidental take permits. The Assistant Administrator may issue permits authorizing activities that would otherwise be prohibited under § 223.208(a) in accordance with section 10(a)(1)(B) of the ESA (16 U.S.C. 1539(a)(1)(B)), and in accordance with, and subject to the conditions of part 222 of this chapter. Such permits may be issued for the incidental taking of elkhorn and staghorn corals.
(5) Section 7 Interagency consultation. Any incidental taking that is in compliance with the terms and conditions specified in a written statement provided under section 7(b)(4)(C) of the ESA (16 U.S.C. 1536(b)(4)(C)) shall not be considered a prohibited taking of elkhorn and staghorn corals pursuant to paragraph (o)(2) of section 7 of the ESA (16 U.S.C. 1536(o)(2)).
(6) Importation under the Convention on International Trade of Endangered Species. Any importation of elkhorn or staghorn corals in compliance with the provisions of section 9(c) of the ESA (16 U.S.C. 1538(c)) shall not be considered a violation of any provision of the ESA or any regulation issued pursuant to the ESA.
National Protection and Programs Directorate, Department of Homeland Security.
Advance notice of proposed rulemaking.
This Advance Notice of Proposed Rulemaking (ANPRM) seeks comment on a recent amendment to the Homeland Security Act entitled the Secure Handling of Ammonium Nitrate. The amendment requires the Department of Homeland Security (DHS or Department) to “regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility * * * to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.”
Written comments must be submitted on or before December 29, 2008.
You may submit comments, identified by docket number 2008–0076, by one of the following methods:
•
•
Dennis Deziel, Office of Infrastructure Protection, Infrastructure Security Compliance Division, Mail Stop 8100, Washington, DC 20528, telephone number (703) 235–5263.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the advance notice of proposed rulemaking (ANPRM). The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from any final rule consequent from this ANPRM. Comments that will provide the most assistance to the Department in developing these procedures will refer to a specific provision of the ANPRM or the Secure Handling of Ammonium Nitrate provisions in the Homeland Security Act, explain the reason for any comments, and include other information or authority that supports such comments.
Section 563 of the 2008 Consolidated Appropriations Act, Subtitle J, Secure Handling of Ammonium Nitrate (“Section 563”), Public Law 110–161, amends the Homeland Security Act of 2002. The amendment requires the Department to “regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility * * * to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.”
AN is a chemical that exists in multiple concentrations and physical forms, each of which may have different security implications. DHS is primarily concerned with AN when used as an explosive or as a fertilizer mixed with fuel oil to create an explosive mixture known as Ammonium Nitrate/Fuel Oil (ANFO). Both of these forms (i.e., explosive and fertilizer coupled with liquid fuel oil) in the hands of terrorists have the potential to be detonated and when there is sufficient exposure may create significant adverse consequences for human life or health. AN fertilizer is commonly found in agriculture-related operations nationwide and, given the availability of small-scale packaging (e.g., 50-pound bags), could be susceptible to theft and misuse in making an improvised explosive device (IED). AN is also used commercially as an explosive (in the mining industry, for example), and in that form, could be stolen and detonated by terrorists.
Terrorist organizations have and will likely continue to use explosives, including AN-based explosives, in future terrorist attacks. While preventing the misappropriation and misuse of AN on American soil could mitigate national risk, AN is only one of many chemicals that are susceptible to misuse by terrorists.
In addition to the authority granted to DHS by section 563 of the 2008 Consolidated Appropriations Act, the Department has authority under an earlier statute to regulate the security of certain facilities that possess AN. In October 2006, Congress enacted section 550 of the Homeland Security Appropriations Act of 2007 (Pub. L. 109–295), which required the Department to issue regulations for the security of high-risk chemical facilities. Under that authority, the Department promulgated an interim final rule called the Chemical Facility Anti-Terrorism
While both section 563 and the CFATS rule share a goal of reducing terrorist risks associated with AN, the scope and methods of regulation under section 563 and CFATS are expected to be very different. The CFATS rule—which addresses hundreds of chemicals in addition to AN—is directed at the security of high-risk facilities. The CFATS rule does not, however, impose any limitations on the sale or transfer of AN. By contrast, section 563 does not address the physical security of AN facilities. Instead, section 563 imposes certain conditions on sales or other transfers of AN—without regard to the quantities involved—e.g., by requiring that AN can only be transferred between registered AN purchasers (or their agents) and AN facilities. In developing the rules required by section 563, DHS intends to draw on information gained under the CFATS program about AN, especially its use by the agricultural community, so that CFATS and the new program under Section 563 complement each other.
Pursuant to section 563, DHS will develop and implement a regulatory program covering the sale and transfer of AN for the purpose of preventing the misappropriation or use of AN in acts of terrorism. Consistent with section 563, DHS expects to include the following categories of activities and sub-activities in that program:
A.
B.
C.
A.
B.
A.
B.
C.
Comments that will provide the most assistance to DHS in this rulemaking include, but are not limited to, the following:
a. Comments regarding submission of registration applications (e.g., whether applications should be submitted electronically or in paper form; whether applications should be available only through DHS or through Local Cooperative Extension Service Offices or at United States Post Offices).
b. Comments regarding the technical capabilities (e.g., access to computers; access to Internet; average level of computing skills; frequency of use of
c. Comments regarding DHS distribution of AN registration letters or certificates (e.g., whether DHS should use email or regular mail).
d. Comments regarding a verification process for registrations and AN purchases, including methods for verifying the identity of any AN purchaser, as well as the identity of designated agents purchasing AN on behalf of registered AN purchasers.
e. Comments on the detonability of AN at certain concentrations, including research being conducted concerning the detonability of AN.
f. Comments on how likely AN fertilizer users would be to use an alternative fertilizer that is potentially less detonable, such as, for example,
g. Comments on how best to conduct or oversee regulatory compliance inspections and audits of AN facilities' records to ensure that regulated facilities are properly maintaining records, to monitor compliance with the requirements of Section 563, and to deter or prevent misappropriation of AN for terrorist acts.
h. Comments on the economic impacts (both long-term and short-term, quantifiable and qualitative) of the implementation of section 563, including potential impacts on State, local, and tribal governments of the United States; potential impacts on agri-business, including AN manufacturers, importers, packagers, distributors, retailers, and end-users including farmers (e.g., whether current AN purchasers would likely reduce their AN purchases as a result of a new regulatory regime); and potential impacts on small businesses.
i. Comments on the monetary and other costs anticipated to be incurred by U.S. citizens and others as a result of the new compliance requirements, such as the costs in time and money that an individual may incur to obtain an AN registration. These costs may or may not be quantifiable and may include actual monetary outlays, transitional costs incurred to obtain alternative documents, and the costs that will be incurred in connection with potential delays at the point of sale.
j. Comments on a possible fee structure to address some or all of the costs of this new program, such as registration, TSDB checks, and issuance of registration numbers.
k. Comments on the benefits of this rulemaking.
l. Comments on any alternative methods of complying with the legislation.
m. Comments on the best methods or processes for interacting with state and local governments regarding AN security.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
This Airworthiness Directive (AD) is prompted by the discovery on L 23 SUPER–BLANIK sailplanes of cracks in zones where the front and aft control levers attach the connecting rod designated as “control bridge” on the relevant Illustrated Parts Catalogues (IPC). If left uncorrected cracks could propagate and lead to the breakage of the connecting rod with subsequent loss of control of the sailplane.
We must receive comments on this proposed AD by November 28, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4130; fax: (816) 329–4090.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent
This Airworthiness Directive (AD) is prompted by the discovery on L 23 SUPER–BLANIK sailplanes of cracks in zones where the front and aft control levers attach the connecting rod designated as “control bridge” on the relevant Illustrated Parts Catalogues (IPC). If left uncorrected cracks could propagate and lead to the breakage of the connecting rod with subsequent loss of control of the sailplane.
For the reasons described above, this AD requires an inspection for cracks of the control bridge and its replacement, as necessary. In addition, this AD requires an update of the aircraft Maintenance Manual (MM) to incorporate repetitive inspections of the control bridge.
LET Aircraft Industries, a.s. has issued Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
We estimate that this proposed AD will affect 105 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour.
Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $16,800, or $160 per product.
In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $2,000, for a cost of $2,560 per product. We have no way of determining the number of products that may need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by November 28, 2008.
(b) None.
(c) This AD applies to Model L 23 Super Blanik sailplanes, all serial numbers, certificated in any category.
(d) Air Transport Association of America (ATA) Code 27: Flight Controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
This Airworthiness Directive (AD) is prompted by the discovery on L 23 SUPER–BLANIK sailplanes of cracks in zones where the front and aft control levers attach the connecting rod designated as “control bridge” on the relevant Illustrated Parts Catalogues (IPC). If left uncorrected cracks could propagate and lead to the breakage of the connecting rod with subsequent loss of control of the sailplane.
For the reasons described above, this AD requires an inspection for cracks of the control bridge and its replacement, as necessary. In addition, this AD requires an update of the aircraft Maintenance Manual (MM) to incorporate repetitive inspections of the control bridge.
(f) Unless already done, do the following actions:
(1) Within the next 3 months after the effective date of this AD and repetitively thereafter at intervals not to exceed 12 months, visually inspect the control bridge in areas of juncture with the two control sticks for cracks. Do the inspection following paragraph A of LET Aircraft Industries, a.s. Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007, except use a 10X magnifier and do a dye penetrant inspection following the procedures in chapter 5, section 5, of FAA Advisory Circular AC 43.13–1B CHG 1, dated September 27, 2001.
(2) If cracks are found in the control bridge bedding during any inspection required in paragraph (f)(1) of this AD, before further flight, replace the defective control bridge bedding, Dwg. No. A740 371N, in the control bridge assembly, Dwg. No. A740 370N, following LET Aircraft Industries, a.s. Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007; and Appendix No. 1, “Replacement of Bearings 608 CSN 024630 at Control Bridge Dwg. No. A740 370N in a Bedding Dwg. No. A740 371N,” to LET Aircraft Industries, a.s. Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007.
(3) Doing the replacement required in paragraph (f)(2) of this AD terminates the 12-month repetitive inspection required in paragraph (f)(1) of this AD. After the replacement required in paragraph (f)(2) of this AD, perform subsequent inspections on the new control bridge assembly according to LET Aircraft Industries, a.s. Documentation Bulletin No.: L23/020 d, dated August 6, 2007.
This AD differs from the MCAI and/or service information as follows:
1. The service information requires a visual inspection with a 6X magnifier. We are requiring a dye penetrant inspection and a 10X magnifier to detect cracks that could go undetected using only a 6X magnifier.
2. The MCAI requires updating the maintenance manuals to add repetitive inspections of the control bridge. Since the maintenance manual is only one way of establishing a maintenance program, the only way we can mandate these repetitive inspections is through an AD action.
(g) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Greg Davison, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329–4130; fax: (816) 329–4090. Before using any approved AMOC on any sailplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120–0056.
(h) Refer to MCAI European Aviation Safety Agency (EASA) AD No. 2007–0261, dated October 2, 2007; LET Aircraft Industries, a.s. Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007; Appendix No. 1, “Replacement of Bearings 608 CSN 024630 at Control Bridge Dwg. No. A740 370N in a Bedding Dwg. No. A740 371N,” to LET Aircraft Industries, a.s. Mandatory Bulletin MB No. L23/050a Revision No. 2, dated September 12, 2007; and LET Aircraft Industries, a.s. Documentation Bulletin No.: L23/020 d, dated August 6, 2007, for related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Boeing Model 727 airplanes. This proposed AD would require inspections for cracking of the left- and right-side shear ties and web posts of the kickload beam and the adjacent structure in the vertical stabilizer, and corrective actions if necessary. This proposed AD results from a report of cracking of the left- and right-side web posts and shear ties of the kickload beam. We are proposing this AD to detect and correct cracking of the left- and right-side web posts and shear ties of the kickload beam, which, when coupled with failures in the adjacent structure, could result in structural failure of the vertical stabilizer, and loss of control of the airplane.
We must receive comments on this proposed AD by December 15, 2008.
You may send comments by any of the following methods:
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•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124–2207.
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 917–6577; fax (425) 917–6590.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report of cracking of the left- and right-side web posts and shear ties of the kickload beam. The cracking was discovered during a scheduled maintenance visit of an airplane with 65,000 total flight hours and 42,000 total flight cycles. The reported cracking of the left- and right-side web posts, which attach to the kickload beam and the left- and right-side stringer 11 in the vertical stabilizer, was due to stress corrosion caused by elevated fit up stress. Cracking in the left- and right-side shear ties, which attach to the kickload beam, was a result of fatigue caused by compensation for cracking in the web posts. Cracking of the shear ties and web posts can diminish the effectiveness of both left- and right-side stringer 11. When coupled with failures in the rear spar chord or stringer 10, the critical crack length at which limit load can be sustained is reduced, rendering the existing inspection intervals for stringer 10 and the rear spar chord insufficient. This condition, if not corrected, could result in structural failure of the vertical stabilizer, which could lead to loss of control of the airplane.
We have reviewed Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008. The service bulletin describes procedures for doing repetitive high frequency eddy current (HFEC) and low frequency eddy current (LFEC) inspections for cracking of the left- and right-side shear ties, left- and right-side web posts, left- and right-side stringers 10 and 11, rear spar chord, associated critical fasteners, and adjacent surfaces in the vertical stabilizer. For airplanes on which any cracking is found in the shear ties or web posts, the service bulletin describes replacing the cracked parts with new parts and inspecting all open fastener holes in the kickload beam web and chords for cracking. For airplanes on which cracking is found in stringer 10 or 11, rear spar chord and skin, associated critical fasteners, adjacent surfaces of the vertical stabilizer, or areas other than the shear ties and web posts, the service bulletin specifies contacting Boeing for repair instructions. The service bulletin specifies the following compliance times:
We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletin.”
Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• Using a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization, whom we have authorized to make those findings.
The service bulletin does not specify a compliance time for airplanes with exactly 52,000 total flight hours or 39,000 total flight cycles. We have grouped those airplanes with airplanes having “less than” 52,000 total flight hours or 39,000 total flight cycles, as specified in paragraph (g) of this proposed AD.
We consider this proposed AD interim action. If final action is later identified, we might consider further rulemaking then.
We estimate that this proposed AD would affect 364 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by December 15, 2008.
(b) None.
(c) This AD applies to all Boeing Model 727, 727C, 727–100, 727 –100C, 727–200, and 727–200F series airplanes, certificated in any category.
(d) This AD results from a report of cracking of the left- and right-side web posts and shear ties of the kickload beam. We are issuing this AD to detect and correct cracking of the left- and right-side web posts and shear ties of the kickload beam, which, when coupled with failures in the adjacent structure, could result in structural failure of the vertical stabilizer, and loss of control of the airplane.
(e) Comply with this AD within the compliance times specified, unless already done.
(f) At the times specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008 (“the service bulletin”), except as provided by paragraphs (g) and (h) of this AD: Do the inspections to detect cracking of the left- and right-side web posts and shear ties of the kickload beam, by doing all of the actions specified in Part 2 and the applicable corrective actions specified in Part 3 of the Accomplishment Instructions of the service bulletin, except as provided by paragraph (i) of this AD. Do all applicable corrective actions before further flight. Repeat the inspections thereafter at the intervals specified in paragraph 1.E. of the service bulletin.
(g) To determine the compliance times for airplanes having exactly 52,000 total flight hours or 39,000 total flight cycles, for the purposes of this AD, these airplanes are grouped with airplanes having “less than” 52,000 total flight hours or 39,000 total flight cycles, as specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008.
(h) Where Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008, specifies a compliance time after the date on the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
(i) If any cracking is found during any inspection required by this AD, and Boeing Special Attention Service Bulletin 727–55–0093, dated March 12, 2008, specifies contacting Boeing for appropriate action: Before further flight, repair the cracking or damage using a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. For a repair method to be approved by the Manager, Seattle ACO, as required by this paragraph, the Manager's approval letter must specifically refer to this AD.
(j)(1) The Manager, Seattle ACO, FAA, ATTN: Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM–120S, 1601 Lind Avenue, SW., Renton, Washington 98057–3356; telephone (425) 917–6577; fax (425) 917–6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking; reopening of comment period.
In response to an industry member request, the Alcohol and Tobacco Tax and Trade Bureau is reopening the comment period for Notice No. 90, Proposed Expansions of the Russian River Valley and Northern Sonoma Viticultural Areas, a notice of proposed rulemaking published in the
Written comments on Notice No. 90 must now be received on or before December 19, 2008.
You may send comments on Notice No. 90 to one of the following addresses:
•
•
You may view copies of this notice, Notice No. 90, and any comments we receive about Notice No. 90 at
Jennifer Berry, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 18152, Roanoke, VA 24014; telephone 540–344–9333.
On August 20, 2008, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published Notice No. 90, Proposed Expansions of the Russian River Valley and Northern Sonoma Viticultural Areas, in the
After publication of Notice No. 90, TTB received a request from Merry Edwards on behalf of the Russian River Valley Boundary Integrity Coalition, a group of area vineyards and wineries, to extend the comment period for Notice No. 90 for an additional 60 days. Ms. Edwards noted in support of the request that members of the coalition are currently immersed in the grape harvest in the Russian River Valley. Ms. Edwards states that this extension will allow members to focus on the petition after harvest activities are complete.
In response to this request, TTB reopens the comment period for Notice No. 90 for an additional 60 days beyond the original closing date, thus leaving Notice No. 90 open to public comment for a total of 4 months. We believe this time period will allow industry members and the public to fully consider the proposals outlined in Notice No. 90. Therefore, comments on Notice No. 90 are now due on or before December 19, 2008.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking; extension of comment period.
In response to an industry association request, the Alcohol and Tobacco Tax and Trade Bureau extends the comment period for Notice No. 83, Proposed Revision of Distilled Spirits Plant Regulations, a notice of proposed rulemaking published in the
Written comments on Notice No. 83 must now be received on or before February 3, 2009.
You may send comments on Notice No. 83 to one of the following addresses:
•
•
•
You may view copies of this notice, Notice No. 83, and any comments we receive about Notice No. 83 at
Daniel J. Hiland, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200–E, Washington, DC 20220; telephone 202–927–8176.
On May 8, 2008, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published Notice No. 83, Proposed Revision of Distilled Spirits Plant Regulations, in the
On October 20, 2008, TTB received another comment period extension request, from the Distilled Spirits Council of the United States, Inc. (DISCUS), a national trade association representing producers and marketers of distilled spirits sold in the United States. DISCUS requested a further 90-day extension of the comment period for Notice No. 83. DISCUS noted in support of its request that the vicissitudes confronting the marketplace and
In response to this latest request, TTB extends the comment period for Notice No. 83 for an additional 90 days, which together with the original 90-day comment period and the first 90-day extension of the comment period will leave Notice No. 83 open to public comment for 9 months. We believe this time period will allow industry members and the public to fully consider the proposals outlined in Notice No. 83. Therefore, comments on Notice No. 83 are now due on or before February 3, 2009.
Forest Service, USDA.
Proposed rule; request for comments.
The Forest Service is proposing to amend the Downpayment rule and the Periodic payments rule to reflect changes in contracting procedures adopted in the April 2004 and June 2006 timber sale contracts. These changes reflect stewardship contracting authorities, and reflect changes in forest products markets since these rules were adopted in 1991. The proposed changes also would remove obsolete references and procedures; make downpayments and periodic payments optional for stewardship contracts; allow downpayment and periodic payment amounts to be recalculated when contracts receive a rate redetermination; revise the procedure for releasing the downpayment; and would allow downpayments to be temporarily reduced when Forest Service authorizes certain additions of contract time.
The intended effect of this proposed rule is to protect the Government's financial security while providing financial relief to timber purchasers during periods when forest products prices drastically decline or purchasers receive additional contract time for periods when they are not expected to operate.
Comments must be received in writing by December 29, 2008.
Mail written comments to the Director of Forest Management, MAIL STOP 1105, Forest Service, USDA, 1400 Independence Avenue, SW., Washington, DC 20250–1105; via e-mail to
Lathrop Smith, Forest Management, (202) 205–0858.
The current downpayment regulation (36 CFR 223.49) and periodic payments regulation (36 CFR 223.50) were adopted on July 31, 1991, (56 FR 36099) to protect the Government's financial interests, reduce speculative bidding, encourage purchasers to harvest timber in a timely manner and to comply with section 2d of the Federal Timber Contract Payment Modification Act (Pub. L. 98–478, 98 Stat 2213; 16 U.S.C. 618) (Buy-out Act).
Under the current downpayment regulations, a purchaser must deposit cash in the timber sale account at the time of sale award equal to 10 percent of the total advertised value of the sale plus 20 percent of the bid premium. This cash is held by the Forest Service and cannot be used by the purchaser for any other purpose until (1) on scaled sales stumpage representing 25 percent of the total bid value has been charged and paid for, or (2) on tree measurement sales until stumpage value representing 25 percent of the total bid value is shown on the timber sale statement of account to have been cut, removed, and paid for (36 CFR 223.49(d)).
Under the current periodic payments regulation, periodic payments are “amounts specified in the contract that a purchaser must pay by the periodic payment determination date(s) unless reduced by amounts paid as stumpage for volume removed.” (36 CFR 223.50(a)(4)). The initial periodic payment is equal to 35 percent of the total contract value or 50 percent of the bid premium, whichever is greater. Where an additional periodic payment is required by the contract, the payment will equal 75 percent of the total contract value. The amount of the periodic payment(s) will be reduced if the payment would result in the purchaser's credit balance for timber charges exceeding the current contract value. (36 CFR 223.50(c)).
The following changes are proposed. Sections 223.49 and 223.50 will be reformatted accordingly.
1. In § 223.49(a)(2), the definition for
2. In § 223.49(b), the option of using effective purchaser credit would be eliminated for the same reasons cited above, and to make downpayments for stewardship contracts optional. Section 323 of the Department of the Interior and Related Agencies Appropriations Act, 2003 (as contained in division F of Pub. L. 108–7; 16 U.S.C. 2104 Note) (Stewardship Contracting Act),
On October 5, 2004, the Forest Service implemented interim Integrated Resource Timber Contracts FS–2400–13 and FS–2400–13T for use in stewardship end result contracting. The Forest Service awards stewardship contracts on the basis of best value as described in the Federal Acquisition Regulations. (FSH 2409.19, chapter 60). Awarding stewardship contracts on a best value basis virtually eliminates the potential for speculative bidding because factors other than price are used to determine best value.
Further, offsetting the value of timber against the cost of service work within a stewardship contract accomplishes the dual functions of providing financial security to the Government and establishing incentive for the contractor to harvest timber and perform the service work in a timely manner. In addition, the government's financial security is safeguarded on most stewardship contracts without a downpayment. Specifically, the government's risk of financial loss is minimized if the contractor performs the service work before harvesting timber. Alternatively, the contractor must pay in advance for any timber cut prior to performing service work. For these reasons, the Forest Service has adopted the policy that most stewardship contracts do not need a downpayment.
However, there can be exceptions. For example, if the value of the timber greatly exceeded the costs of the services, a downpayment may be needed to encourage the contractor to harvest the timber in a timely manner. Forest Service Handbook (FSH) 2409.19, chapter 60, currently requires the contracting officer to determine what bonds will be required for individual stewardship contracts. That chapter will be amended to include determining whether a downpayment should be required on a stewardship contract.
3. In § 223.49(c) the obsolete references to converting units of measure other than board feet to board feet would be deleted, and a requirement would be added to include recalculating the amount of the downpayment when stumpage rates are redetermined. The downpayment amount is calculated as a percentage of sale value without regard to unit of measure for the timber. Timber sale contracts contain procedures to redetermine stumpage rates for (1) Environmental modification, (2) catastrophic damage, (3) market change that occurs after Forest Service orders a suspension or delay, and (4) a market change emergency rate redetermination. None of these stumpage rate redetermination procedures includes a process for concurrently recalculating the amount of the downpayment or periodic payments. The amount of cash deemed necessary to protect the Government's financial security and encourage purchasers to harvest timber in a timely manner is based on a percentage the contract's value at time of award. Therefore, when the contract value changes substantially as a result of a stumpage rate redetermination, the downpayment and periodic payments should also be recalculated commensurate with the change in sale value. The Government's financial security is maintained because it retains the same percentage of total contract value before and after the rates are redetermined.
4. Section 223.49(d) would be amended to clarify when the downpayment can be released. In § 223.49(d), purchasers of scaled sales cannot apply the amount deposited as a downpayment to cover other obligations on the sale until 25 percent of the total bid value of the sale has been charged and paid for; on tree measurement sales, the purchaser cannot apply the downpayment to cover other obligations until stumpage value representing 25 percent of the total bid value of the sale shown on the timber sale statement of account to have been cut, removed and paid for. On sales subject to stumpage rate adjustment, prices can decline so much that the amount of the downpayment can exceed the value of timber remaining to be harvested without triggering the release of the downpayment. For example: Sale A contains 4000 ccf of timber advertised at $50/ccf and bid up to $70/ccf for a total sale bid value of $280,000. Pursuant to § 223.49(c) the downpayment amount is $36,000 and pursuant to § 223.49(d), $70,000 of timber must be charged and paid for before the purchaser can apply the amount deposited as the downpayment to cover other obligations on the sale. As a result of stumpage rate adjustments in a rapidly declining market current contract rates de-escalate to $14/ccf for a total contract value of $56,000. The purchaser harvests 2000 ccf at $14/ccf and pays $28,000. The Forest Service is still holding the $36,000 downpayment even though it is greater than the $28,000 remaining value of the sale.
The Forest Service never intended to hold a downpayment greater than the value of timber remaining to be harvested which is evidenced by the following: (1) § 223.49(d), which specifies that for lump sum sales the downpayment may be applied to payment for release of the single payment unit, and (2) § 223.49(h), which authorizes release of the downpayment for sales subject to the additional downpayment requirement in § 223.49(g) when the value of timber remaining to be harvested is equal to or less than the amount of the downpayment. The amendment to § 223.49(d) will allow a downpayment to be released when it equals or exceeds the value of timber remaining to be harvested. Section 223.49(d)(1) would be added to address the procedure on scaled sales and § 223.49(d)(2) would be added to address the procedure on tree measurement sales.
5. Amend § 223.49(g) to allow the downpayment amount on contracts subject to § 223.49(e)'s higher downpayment requirement to be recalculated when stumpage rates are redetermined for the same reasons cited in the description of changes for § 223.49(c).
6. Remove § 223.49(g)(1) to eliminate the obsolete reference to ineffective purchaser credit.
7. Remove § 223.49(g)(2) to eliminate obsolete references to converting units of measure other than board feet to board feet for the same reasons cited in the description of changes for § 223.49(a)(2).
8. Add § 223.49(k) to allow a temporary reduction of downpayments. Timber sales on contract forms dated April 2004 and later contain provisions for temporarily reducing the amount of the downpayment when Forest Service orders a delay or interruption of the contract for 30 days or more when the contract would be operating but for the order. That procedure went through a public review process in 2004 (69 FR 25367), and is included in the proposed § 223.49(k). This amendment proposes expanding that procedure to include when a purchaser's scheduled operations are delayed or interrupted for 30 consecutive days or more for any of the following reasons: (1) Forest Service
Under normal market conditions, purchasers have an incentive to harvest enough timber to release the downpayment; that is not always the case when forest products markets have drastically declined. Although the Forest Service does not require purchasers to operate sales receiving additional time pursuant to a SOPI, the current regulation requires purchasers to maintain their full downpayment during a SOPI extension. Requiring purchasers to maintain their full cash downpayment as an inducement to operate a sale receiving additional time pursuant to a SOPI, or because the Forest Service requested or authorized a purchaser to harvest other timber in more urgent need of harvesting is unnecessary. In addition, the Forest Service does not believe that the temporary downpayment reductions allowed by § 223.49(k) will impact the regulation's effectiveness in reducing speculative bidding.
Further, the Forest Service has determined that the benefits of temporarily reducing downpayments under § 223.49(k) outweigh the potential increased risks to the government's financial security. First, the Forest Service believes that temporarily reducing downpayments on sales that the Agency requested or ordered be interrupted or delayed minimizes the Agency's potential financial liability under the contract. Second, allowing purchasers to temporarily reduce downpayments when they shift their operations to other timber designated as in urgent need of harvesting may result in purchasers buying urgent need timber that otherwise would not be sold. Finally, allowing purchasers to temporarily reduce downpayments on contracts extended by a SOPI determination may help purchasers and the Forest Service meet the challenges associated with drastic declines in forest products markets, which have become apparent during the current prolonged softwood and hardwood lumber market declines. Following is an example showing how both parties can benefit from a temporary reduction in downpayment on sales receiving a SOPI extension pursuant to the MRCTA regulation.
When a purchaser harvests a sale, the downpayment is released and the purchaser receives revenue from selling or processing the timber. The purchaser uses some of that cash to cover the bid guarantee and downpayment on a new sale that will be operated in the future. Presently that cash flow is interrupted when harvesting activities are put on hold because the sale is receiving MRCTA to allow time for market conditions to improve. The cash tied up covering the downpayment and lack of revenue being generated from the inactive sale dries up the cash needed to buy a new sale. This leads to the Government not receiving a bid on a new sale that is offered at prices reflecting the depressed market. The purchaser can't operate the high priced sale receiving MRCTA without suffering losses and can't afford to buy a new less expensive sale that could be operated. With its revenue stream broken, the purchaser starts laying off workers and has logging equipment repossessed as payments fall behind. By the time market conditions improve the purchaser has lost the ability to complete the sale that had received the MRCTA and defaults. Defaults are costly for the Government to process and often lead to loss of industry infrastructure needed to accomplish forest management objectives in a cost effective manner and industry infrastructure needed for dependent communities. The Government can apply the downpayment it is still holding towards default damages but the purchaser is now gone and not available to buy and harvest future sales. But the current depressed market conditions aren't affecting just one purchaser; they are affecting virtually all purchasers. While many purchasers will be able hold on until market conditions improve, many will not. As those numbers increase, there will be an increase in the number of sales not receiving any bids. The costs of completing forest management work such as treating fuels in a Wildland Urban Interface area will increase if that work has to be performed with a service contract that generates no offsetting revenue to the Government. Temporarily reducing downpayments as proposed will help a purchaser's cash flow and potentially head off the drastic economic chain of events described above. This won't prevent all purchasers from failing or prevent all contracts from defaulting during drastic market declines. But, the amount of financial security the Government may forgo by temporarily reducing downpayments on contracts that ultimately default will be more than offset by the economic benefits derived from the increased number of contracts that don't default because of helping purchasers with their cash flow.
1. Section 223.50(b) would be amended to clarify that periodic payments are not required for stewardship contracts for the same reasons that downpayments are not required for stewardship contracts.
2. Section 223.50(f) would be amended to remove obsolete contract modification procedures and add procedures for recalculating the amount of the periodic payment(s) following a rate redetermination authorized under the contract. The obsolete procedures being removed required purchasers of pre-1991 contracts to make a written request by December 31, 1991, to receive market-related contract term additions. The addition of procedures for recalculating the amount of the periodic payment(s) following a rate redetermination are for the same reasons as cited for § 223.49(c) above.
The proposed rule will modify the downpayment regulation (36 CFR 223.49) and the periodic payments regulation (36 CFR 223.50) to provide financial relief to timber purchasers during times of significant market declines. The small amount of financial security the Government may forgo by temporarily reducing downpayments on contracts that ultimately default will be more than offset by the economic benefits derived from the increased number of contracts that don't default because of helping purchasers with their cash flow.
The proposed rule will add flexibility to the regulations on downpayment and periodic payments for stewardship sales
This proposed rule has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. The Office of Management and Budget (OMB) has determined that this is not a significant regulatory action and is not subject to OMB review. This rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local Governments. This rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. This rule consists of technical administrative changes to regulations affecting the administration of commercial timber sales on National Forest lands. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this proposed rule is not subject to OMB review under Executive Order 12866.
This proposed rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, which the President signed into law on March 22, 1995, the Department has assessed the effects of this rule on State, local, and Tribal Governments and the private sector. This proposed rule does not compel the expenditure of $100 million or more by any State, local, or tribal Government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
This proposed rule establishes uniform criteria to be followed when consideration is being given to temporarily reduce or change the downpayment requirements on a timber sale. Downpayments in timber sales have been required for many years and this requirement remains. Only the amount of downpayment is being revised and will be controlled at the local level by the Timber Sale Contracting Officer. Section 31.12 of Forest Service Handbook 1909.15 (February 15, 2007) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions” that do not significantly affect the quality of the human environment. The agency's preliminary assessment is that this rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement. The intent of this proposed rule is to provide authority to allow for changes in the downpayment requirements while maintaining financial protection to the Government.
This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the rule does not pose the risk of a taking of private property. There are no private property rights to be affected because the rule applies to commercial timber sale on National Forest lands.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this rule were adopted, (1) All State and local laws and regulations that are in conflict with this rule or which would impede its full implementation would be preempted; (2) no retroactive effect may be given to this rule; and (3) it does not require administrative proceedings before parties may file suit in court challenging it provisions.
This proposed rule does not contain any recordkeeping or reporting requirements or other information collection requirement as defined in 5 CFR Part 1320, Controlling Paperwork Burdens on the Public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Administrative practice and procedures, Exports, Forests and forest products, Government contracts, National Forests, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Forest Service proposes to amend Part 223 of Title 36 of the Code of Federal Regulations as follows:
1. The authority citation for part 223 continues to read as follows:
90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213; 16 U.S.C. 618, 104 Stat. 714–726, 16 U.S.C. 620–620j, unless otherwise noted.
2. Revise § 223.49 to read as follows:
(a) For the purposes of this section, the terms listed in this paragraph shall have the following meaning:
(1)
(2)
(3)
(4)
(b) Timber sale contracts shall include provisions that require purchasers to make a downpayment in cash at the time a timber sale contract is executed, except that a downpayment is not required for stewardship contracts unless the contracting officer determines that a downpayment is needed to ensure the Government's financial security.
(c) The minimum downpayment shall be equivalent to 10 percent of the total advertised value of each sale, plus 20 percent of the bid premium, except in those geographic areas where the Chief of the Forest Service determines that it
(1) Environmental modification,
(2) Catastrophic damage,
(3) Market change, or
(4) An emergency rate redetermination.
For the purpose of recalculating the minimum downpayment, total advertised value shall be replaced with total redetermined value.
(d) A purchaser cannot apply the amount deposited as a downpayment to cover other obligations due on that sale until:
(1) On scaled sales stumpage value representing 25 percent of the total bid value of the sale has been charged and paid for, or the estimated value of unscaled timber is equal to or less than the amount of the downpayment; or
(2) On tree measurement sales stumpage value representing 25 percent of the total bid value of the sale is shown on the timber sale statement of account to have been cut, removed, and paid for, or the estimated value of timber remaining to be cut, removed and paid for as shown on the timber sale statement of account is equal to or less than the amount of the downpayment, except that on lump sum sales, the downpayment amount may be applied to payment for release of the single payment unit.
(e) A purchaser or any affiliate of that purchaser awarded a Forest Service timber sale contract must meet the additional downpayment requirements of paragraph (g) of this section under the following circumstances:
(1) The purchaser or its affiliate after September 29, 1988, has failed to perform in accordance with the terms of a Forest Service or Bureau of Land Management timber sale contract which results in notification by a Contracting Officer that a contract has expired uncompleted or is terminated for cause; and
(2) The estimated value of the unscaled timber on scaled sales, or the estimated value of the timber outstanding on tree measurement sales, included in those terminated or expired contracts exceeds $100,000, and
(3) Unpaid damages claimed by the Government remain outstanding prior to award of the new sale at issue and corrective action has not been taken to avoid future deficient performance.
(f) A subsequent final determination by the Contracting Officer or by a court of competent jurisdiction that a contract was improperly classified under the criteria in paragraph (e) of this section will result in the refund or credit of any unobligated portion of the amount of downpayment exceeding that required by paragraphs (c) and (d) of this section and the limitations of paragraph (h) of this section on application of downpayment shall no longer apply.
(g) Notwithstanding the provisions of paragraphs (c) and (d) of this section, a purchaser meeting the criteria of paragraph (e) of this section must make a minimum downpayment equal to 20 percent of the total advertised value of that sale, plus 40 percent of the total bid premium. This higher downpayment requirement applies throughout the National Forest System, except in those areas where the Chief of the Forest Service determines, before advertisement of the sale, that another downpayment rate is necessary to achieve the management objectives of the National Forest System. The amount of the downpayment shall be redetermined in accordance with this paragraph when contract rates for timber are redetermined under the terms of the contract for:
(1) Environmental modification,
(2) Catastrophic damage,
(3) Market change, or
(4) An emergency rate redetermination.
For the purpose of redetermining the downpayment total advertised value shall be replaced with total redetermined value.
(h) A purchaser subject to the additional downpayment requirements of paragraph (g) of this section cannot apply the amount deposited as a downpayment to other uses until:
(1)
(2)
(i) For the purpose of releasing funds deposited as downpayment by a purchaser subject to paragraph (f) of this section, the Forest Service shall compute the estimated value of timber as follows:
(1)
(2)
(j) In order to deter speculation, the Chief of the Forest Service may increase the period for retention of the downpayment for future contracts subject to such criteria as the Chief may adopt after giving the public notice and opportunity to comment.
(k) The Forest Service may temporarily reduce the downpayment when a purchaser's scheduled operations are delayed, interrupted, or extended for 30 or more consecutive days for any of the following reasons:
(1) Forest Service requests or orders purchaser to delay or interrupt operations for reasons other than breach;
(2) A contract term addition pursuant to purchaser shifting operations to a sale designated by the Forest Service as in urgent need of harvesting; or
(3) An extension of the contract term authorized upon a determination of substantial overriding public interest, including a market-related contract term addition, or an urgent removal contract term extension under 36 CFR 223.53.
(l) During the qualifying period of delay, interruption, or extension that meets the conditions of paragraph (k) of this section, the Forest Service may reduce the downpayment to $1000 or two (2) percent of the downpayment amount stated in the contract, whichever is greater. Upon purchaser's receipt of the bill for collection, and written notice from the contracting officer that the basis for the delay, interruption, or extension no longer exists, the purchaser must restore the downpayment to the full amount stated in the contract within 15 days after the date the bill for collection is issued. Purchaser shall not conduct operations until the downpayment amount stated in the contract is fully restored.
3. In § 223.50 revise paragraphs (b) introductory text and (f), and add a new paragraph (b)(3) to read as follows:
(b) Except for lump sum sales each timber sale contract of more than one full normal operating season shall provide for periodic payments. The number of periodic payments required will be dependent upon the number of
(3) Notwithstanding paragraph (b) of this section, periodic payments are not required for stewardship contracts unless the contracting officer determines that periodic payments are needed to ensure the government's financial security.
(f) The amount of any periodic payment(s) not yet reached shall be revised when rates are redetermined under the terms of the contract. The revised periodic payment amounts shall be based on a recalculated total contract value using the same procedures described in paragraphs (c) and (d) of this section . The recalculated total contract value is the current contract value following the rate redetermination plus:
(1) The total value of timber scaled prior to establishing redetermined rates in a scale sale, or
(2) The total value of timber shown on the timber sale statement of account as having been cut, removed and paid for in a tree measurement sale.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a request submitted by the Illinois Environmental Protection Agency (IEPA) on January 24, 2008, to revise the Illinois State Implementation Plan (SIP) for volatile organic compounds (VOC). The proposed approval revises the Illinois SIP by updating information regarding the packaging production facility of Cromwell-Phoenix, Incorporated, located in Alsip, Illinois. It acknowledges that the source has changed its name from Cromwell-Phoenix, Incorporated, to CP–D Acquisition Company, LLC, as a consequence of a change in ownership. The revision does not change any of the VOC control requirements and will not increase VOC emissions because no emission limits were increased.
Comments must be received on or before November 28, 2008.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2008–0198 by one of the following methods:
•
•
•
•
•
Please see the direct final rule which is located in the Rules section of this
Charles Hatten, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6031,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia for the purpose of moving the Richmond and the Hampton Roads 8-Hour Ozone Nonattainment Areas from the nonattainment areas list to the maintenance areas list. In the Final Rules section of this
Comments must be received in writing by November 28, 2008.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2008–0656 by one of the following methods:
A.
B.
C.
D.
Patrick Egan, (215) 814–3167, or by e-mail at
For further information, please see the information provided in the direct final action, Approval of Virginia's Revision to move the Richmond and the Hampton Roads 8-Hour Ozone Nonattainment Areas from the list of nonattainment areas to the list of maintenance areas that is located in the “Rules and Regulations” section of this
Environmental Protection Agency (EPA).
Proposed rule.
During a review of Texas' regulations, EPA identified a variety of State-initiated changes to Texas' hazardous waste program under the Resource Conservation and Recovery Act, as amended (RCRA), for which the State had not previously sought authorization. EPA proposes to authorize the State for the program changes. In addition, EPA proposes to codify in the regulations entitled “Approved State Hazardous Waste Management Programs”, Texas' authorized hazardous waste program. EPA will incorporate by reference into the Code of Federal Regulations (CFR) those provisions of the State regulations that are authorized and that EPA will enforce under RCRA. In the “Rules and Regulations” section of this
Send written comments by November 28, 2008.
Send written comments to Alima Patterson, Region 6, Regional Authorization Coordinator, or Julia Banks, Codification Coordinator, (6PD–O), Multimedia Planning and Permitting Division at the address shown below. You can examine copies of the materials that form the basis for this authorization and incorporation by reference during normal business hours at the following location: EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202–2733, phone number (214) 665–8533 or (214) 665–8178. Comments may also be submitted electronically or through hand delivery/courier; please follow the detailed instructions in the
Alima Patterson, (214) 665–8533.
For additional information, please see the immediate final rule published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues this proposed rule that would implement Amendment 4 to the Fishery Management Plan for the Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands (Caribbean FMP) prepared by the Caribbean Fishery Management Council (Caribbean Council) and Amendment 8 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (Gulf and South Atlantic FMP) prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Gulf and South Atlantic Councils). This proposed rule would establish two minimum size restrictions for importation of spiny lobster into the United States -one applicable to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that applies to Puerto Rico and the U.S. Virgin Islands. In addition, this proposed rule would prohibit importation of egg-bearing spiny lobsters and importation of spiny lobster tail meat that is not in whole tail form with the exoskeleton attached. The intended effect of this proposed rule is to enhance the conservation of the spiny lobster resource and improve effectiveness of law enforcement related to such conservation.
Written comments must be received on or before December 15, 2008.
You may submit comments on the proposed rule, identified by 0648–AV61, by any of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal:
• Mail: Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.
• Fax: 727–824–5308; Attention: Jason Rueter.
Instructions: All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Copies of the combined Amendments 4 and 8, which include a draft environmental impact statement (DEIS), an initial regulatory flexibility analysis (IRFA), a regulatory impact review (RIR), and a social impact assessment/fishery impact statement may be obtained from Jason Rueter, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701 or may be downloaded from the Southeast Regional Office website at
Jason Rueter, telephone 727–824–5305; fax 727–824–5308; e-mail
The spiny lobster fishery of the Caribbean is managed under the Caribbean FMP prepared by the Caribbean Council and is implemented through regulations at 50 CFR part 622. The spiny lobster fishery of the Gulf of Mexico and South Atlantic is managed under the Gulf and South Atlantic FMP prepared by the Gulf and South Atlantic Councils and is implemented through regulations at 50 CFR part 640. Both regulations are implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Fisheries for spiny lobster (
Spiny lobster have a long (approximately 1-year) planktonic larval phase during which the larvae can be widely distributed by ocean currents over large geographic areas. Spiny lobster resources off Florida and the U.S. Caribbean are dependent, in part, on recruitment of larvae from areas in the Caribbean basin, outside the U.S. EEZ. Large quantities of spiny lobster are being harvested outside the U.S. exclusive economic zone (EEZ) at a size less than the respective continental U.S. and U.S. Caribbean minimum size limits, which are designed to prohibit harvest prior to the average size at sexual maturity. Much of this harvest outside the U.S. EEZ also involves spiny lobster less than the minimum size limits of the various foreign countries where such harvest occurs; however, enforcement has not been effective in curtailing this illegal activity.
Large-scale harvest of sexually immature, i.e. undersized, spiny lobster outside the U.S. EEZ adversely impacts the reproductive capacity of the spiny lobster resources and subsequent recruitment throughout the Caribbean and Florida. A reduction of fishing effort on undersized, sexually immature spiny lobster and a more comprehensive and effective enforcement mechanism would increase spawning stock biomass and increase potential yield from the fisheries. Representatives of the spiny lobster seafood industry have recognized that large-scale harvest of undersized spiny lobster adversely affect the spiny lobster resource throughout large portions of its range including areas subject to U.S. jurisdiction and have asked respective governments to address the illegal harvest and exportation of undersized spiny lobster tails to the United States.
The United States is a major importer of spiny lobster -importing over 194 million lb (88 million kg) over the past 10 years. The United States imports over 90 percent of the spiny lobster harvested in South and Central America and other Caribbean countries. The major exporters to the United States are the Bahamas, Brazil, Honduras, and Nicaragua.
There are two main issues associated with addressing the importation of undersized spiny lobster. First is the importation of spiny lobster that are
Establishing minimum sizes for imports would address both of these issues. Prohibiting the importation of spiny lobster smaller than the domestic size limits will severely limit, if not eliminate, the market for legally and illegally harvested undersized spiny lobster. This is expected to serve as an incentive for countries that do not currently have such measures to implement consistent size limits to protect juvenile spiny lobster.
This proposed rule would also establish measures to enhance protection of egg-bearing spiny lobster and to enhance enforcement of the size requirements.
This proposed rule would prohibit the importation of undersized, sexually immature spiny lobster into the United States by establishing minimum tail-weight requirements. Spiny lobster are rarely, if ever, imported as whole animals, but instead are imported as frozen tails. It is estimated over 99 percent of spiny lobster product enters the U.S. in frozen-tail form. It is standard industry practice for spiny lobster destined for importation into the United States to be marketed, sorted, shipped, stored, and sold based on tail-weight categories. In addition, U.S. Customs' entry documents and the seafood industry's sales, storage and bills of lading documents typically include the tail weights (in ounces), making this measurement an effective enforcement tool to track undersized lobster, even after it enters a U.S. port.
This proposed rule would establish two minimum size limits that would apply to importation of spiny lobster into the United States -one that would apply any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands, and a more restrictive minimum size limit that would apply to Puerto Rico and the U.S. Virgin Islands. First, this proposed rule would prohibit any person from importing spiny lobster with less than 5 ounces (142 grams) tail weight (5 ounces (142 grams) is defined as a tail that weighs 4.2–5.4 ounces (119–153 grams)) into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands. If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the burden is satisfied, such spiny lobster would be considered to be in compliance with the minimum 5–ounce (142–gram) tail-weight requirement.
Second, the proposed rule would also prohibit any person from importing into Puerto Rico or the U.S. Virgin Islands any spiny lobster of less than 6.0 ounces (170 grams) tail weight (6 ounces (170 grams) is defined as a tail that weighs 5.9–6.4 ounces (167–181 grams)). If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight, the person importing such spiny lobster would have the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster would have the burden to prove that such spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the burden is satisfied such spiny lobster would be considered to be in compliance with the minimum 6–ounce (170–gram) tail-weight requirement.
These proposed minimum tail-weight requirements correspond to the existing minimum size limits applicable to the U.S. fisheries in the continental United States and in Puerto Rico and the U.S. Virgin Islands, respectively.
This proposed rule would also prohibit importation of spiny lobster tail meat in other than whole tail form with the exoskeleton attached and would prohibit importation of egg-bearing spiny lobster or those from which eggs or the abdominal appendages to which eggs attach (swimmerets or pleopods) have been removed or stripped. Prohibiting importation of tail meat in other than whole tail form is necessary for effective enforcement of the tail-weight (or tail-length) requirement. Because the vast majority of tail meet is imported in whole tail form, any associated adverse economic impacts are expected to be minimal and would be offset by conservation benefits. The prohibitions related to egg-bearing spiny lobster would provide further protection for sexually mature female spiny lobster and would enhance the reproductive capacity of the resource.
Additional background and rationale for the measures discussed above are contained in Amendments 4 and 8. The availability of Amendments 4 and 8 was announced in the
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendments 4 and 8, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared a DEIS for this amendment. A notice of availability for the DEIS was published on June 27, 2008 (73 FR 36503).
NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the
The Magnuson-Stevens Act provides the statutory basis for the proposed rule. The proposed rule would implement importation standards for spiny lobster,
The purpose of the proposed rule is to implement importation standards that will increase law enforcement's ability to effectively prevent the importation of undersized spiny lobster, spiny lobster with eggs or from which eggs have been removed, and spiny lobster tail meat in any form other than a whole tail with the exoskeleton attached.
No duplicate, overlapping or conflicting Federal rules have been identified.
The primary entities that are expected to be affected would be businesses that import spiny lobster into the United States from countries: (1) with legal minimum size standards that are less than those proposed or without such standards, and (2) without legal prohibitions against harvesting female lobsters with eggs, detaching their eggs and/or removing pleopods (swimmerets), or (3) without prohibitions on marketing spiny lobster tail meat in a form other than a whole tail with the exoskeleton attached.
Businesses that import spiny lobster are expected to be within the following industries: Fish and Seafood Merchant Wholesalers (NAICS 424460), Fish and Seafood Markets (NAICS 445220), Fish and Frozen Seafood Processing (NAICS 311712), Packaged Frozen Food Merchant Wholesalers (NAICS 424420), and Supermarkets and Other Grocery, Except Convenience, Stores (NAICS 445110). The Small Business Administration (SBA) has established that a business in one of these industries is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and if it has no more than 100 employees (NAICS 424460 and 424420), 500 employees (NAICS 311712), $6.5 million in annual receipts (NAICS 445220) or $25 million in annual receipts (NAICS 445110). According to Firm Size Data (
The U.S. is the largest importer of spiny lobster. From 2002 through 2007, U.S. rock lobster imports, which includes spiny lobster, originated from 17 countries that harvest spiny lobster (Brazil, Bahamas, Belize, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Martinique, Mexico, Nicaragua, Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela), and of these countries, only Costa Rica, Guatemala, and Trinidad and Tobago have no harvest-size standards for spiny lobster. Additionally, a preliminary review of Panama fishing laws has not shown such a standard. Of the 13 countries with known harvest-size standards, 7 have legal size standards for spiny lobster that meet or exceed the proposed 5–ounce (142–gram) minimum tail weight that would apply anywhere subject to the jurisdiction of the United States (excluding Puerto Rico and the U.S. Virgin Islands where a more restrictive 6–ounce (170–gram) minimum tail weight would apply). These 7 countries are: The Bahamas, Colombia, Dominican Republic, Honduras, Turks and Caicos Islands, Nicaragua, and Venezuela. Thus, the 5–ounce (142–gram) minimum tail weight proposed by this rule would affect small businesses that import frozen spiny lobster from the following countries of origin into anywhere subject to the jurisdiction of the U.S., excluding Puerto Rico or the U.S. Virgin Islands: The Bahamas, Belize, Brazil, Colombia, Jamaica, Martinique, Mexico, Nicaragua, Panama, and Trinidad and Tobago.
Many of the 17 countries of origin that harvest spiny lobster also prohibit harvest of berried (egg-bearing) lobsters and removal of pleopods. The Bahamas, Brazil, Belize, Colombia, Costa Rica, Dominican Republic, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Turks and Caicos Islands, and Venezuela prohibit taking of berried lobsters. Hence, the prohibition against importation of berried lobsters would not affect these countries. However, the prohibition against importation of berried lobsters could affect spiny lobster imports from Guatemala, Martinique and Trinidad and Tobago. The Bahamas and Belize have laws that prohibit the removal of pleopods. Consequently, the prohibition against importation of spiny lobster with their pleopods removed may affect imports from Brazil, Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Jamaica, Martinique, Mexico, Nicaragua, Panama, Trinidad and Tobago, Turks and Caicos Islands, and Venezuela.
U.S. Customs data show there were no imports of rock lobster into the U.S. Virgin Islands from 2001 through 2007. Consequently, it is expected that there are no small businesses that import spiny lobster into the U.S. Virgin Islands and would be affected by this proposed rule. The same data show imports of rock lobster into Puerto Rico originated from The Bahamas, Dominican Republic and Honduras, which have legal size standards less than the minimum legal standards of Puerto Rico and the U.S. Virgin Islands. Both Puerto Rico and the U.S. Virgin Islands, however, prohibit the possession of spiny lobster with a carapace less than 3.5 inches (8.89 cm), which, in turn, prohibits the importation of lobsters that do not meet their size standard. Puerto Rico also prohibits possession of berried lobsters. Therefore, the proposed prohibition against importation of berried lobsters should not affect small businesses that import spiny lobster into Puerto Rico. Furthermore, preliminary evidence suggests little to none of the spiny lobster imports into Puerto Rico include meat with the exoskeleton removed.
This proposed rule would also prohibit importation of spiny lobster with their pleopods removed. Most imports of spiny lobster are parts of or whole lobster with the meat attached to the exoskeleton. Hence, this particular prohibition is expected to affect a small minority of imports.
The Western Central Atlantic Fishery Commission has reported that harvesting and trading of spiny lobster below the minimum legal size is a serious problem, especially in Brazil. It has also been reported to be a problem in Nicaragua, Honduras and the Bahamas. From 2002 through 2007, of the top four countries of origin of imported frozen rock lobster and other sea crawfish (HS 030611000) that harvest spiny lobster, about 32 percent of frozen rock lobster and other sea crawfish by value were imported from Brazil, followed by about 21 percent from the Bahamas, about 18 percent from Honduras, and 16 percent from Nicaragua, for a total of about 86 percent of the frozen rock lobster imports from countries that harvest spiny lobster. The
During the same period, U.S. imports of non-frozen rock lobster and other sea crawfish (HS 030621000) from countries of origin that also harvest spiny lobster were Costa Rica, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Turks and Caicos Islands, and Venezuela. Because Honduras, Nicaragua, Turks and Caicos Islands, and Venezuela have minimum size standards that are equivalent to the proposed size standards that would apply anywhere subject to the United States, except Puerto Rico or the U.S. Virgin Islands, this proposed rule would affect small businesses that import non-frozen spiny lobster from the following countries of origin: Costa Rica, Guatemala, Jamaica, and Mexico. About 93 percent of the non-frozen rock lobster imports by value from countries of origin that harvest spiny lobster are from Mexico, and increasingly these imports from Mexico have been live lobsters. Collectively, the imports of non-frozen rock lobster from these four countries of origin (Costa Rica, Guatemala, Jamaica, and Mexico) represent about 94 percent of the non-frozen imports by value for countries that harvest spiny lobster.
Frozen imports of rock lobster represent the large majority of rock lobster imports. During the period from 2002 through 2007, of the top four countries of origin that harvest spiny lobster, about 32 percent of frozen rock lobster and other sea crawfish were imported from Brazil, followed by about 21 percent from the Bahamas, about 18 percent from Honduras, and 16 percent from Nicaragua, for a total of about 86 percent of the rock lobster imports from these countries.
Customs data from January 22, 2004, through December 31, 2007, for frozen rock lobster imports from the top four countries of origin (Brazil, Bahamas, Honduras, and Nicaragua), indicate 98 businesses imported frozen rock lobster from these 4 countries. Thirteen of these businesses are foreign-based, and at least 3 are subsidiaries of much larger companies. Of the remaining 82 businesses, 45 of them imported frozen rock lobster in 1 year, followed by 17 businesses in 2 years, 10 in 3 years, and 10 in 4 years. The number of small businesses in any 1 year that imported frozen rock lobster from one or more of these countries ranged from 47 to 32 from 2004 through 2007, with an average of 38 annually. Therefore, 86 percent of the annual imports of frozen rock lobster from countries that harvest spiny lobster are brought in by an average of 38 small businesses. This is indicative that this proposed rule would not have an adverse impact on a substantial number of small or large businesses.
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
Fisheries, Fishing, Incorporation by reference, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR parts 622 and 640 are proposed to be amended as follows:
1. The authority citation for part 622 continues to read as follows:
16 U.S.C. 1801
2. In § 622.1, a sentence is added to the end of paragraph (b) to read as follows:
(b) * * * This part also governs importation of Caribbean spiny lobster into Puerto Rico or the U.S. Virgin Islands.
3. In § 622.2, the definition of “Import” is added in alphabetical order to read as follows:
(1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, Puerto Rico or the U.S. Virgin Islands, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but
(2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States.
4. In § 622.3, paragraph (a) is revised and paragraph (f) is added to read as follows:
(a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) through (f) of this section.
(f) Regulations pertaining to additional prohibitions on importation of spiny lobster into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands are set forth in part 640 of this chapter.
5. In § 622.7, paragraph (ii) is added to read as follows:
(ii) Fail to comply with the Caribbean spiny lobster import prohibitions, as specified in § 622.50.
6. Section 622.50 is added to subpart C to read as follows:
(a)
(1) No person may import a Caribbean spiny lobster with less than a 6–ounce (170–gram) tail weight into Puerto Rico or the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 6–ounce (170–gram) tail weight is defined as a tail that weighs 5.9–6.4 ounces (167–181 grams). If the documentation accompanying an imported Caribbean spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight, the person importing such Caribbean spiny lobster has the burden to prove that such Caribbean spiny lobster actually does satisfy the minimum tail-weight requirement or that such Caribbean spiny lobster has a tail length of 6.2 inches (15.75 cm) or greater or that such Caribbean spiny lobster has or had a carapace length of 3.5 inches (8.89 cm) or greater. If the imported product itself
(2) See § 640.27 of this chapter regarding the minimum size limit that applies to spiny lobster imported into any place subject to the jurisdiction of the United States other than Puerto Rico or the U.S. Virgin Islands.
(b)
(2)
7. The authority citation for part 640 continues to read as follows:
16 U.S.C. 1801
8. Section 640.1 is revised to read as follows:
(a) The purpose of this part is to implement the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic prepared by the South Atlantic and Gulf of Mexico Fishery Management Councils under the Magnuson-Stevens Act.
(b) This part governs conservation and management of spiny lobster and slipper (Spanish) lobster in the EEZ in the Atlantic Ocean and Gulf of Mexico off the Atlantic and Gulf of Mexico states from the Virginia/North Carolina border south and through the Gulf of Mexico. This part also governs importation of spiny lobster into any place subject to the jurisdiction of the United States.
(c) An owner or operator of a vessel that has legally harvested spiny lobsters in the waters of a foreign nation and possesses spiny lobster, or separated tails, in the EEZ incidental to such foreign harvesting is exempt from the requirements of this part 640, except for § 640.27 with which such an owner or operator must comply, provided proof of lawful harvest in the waters of a foreign nation accompanies such lobsters or tails.
9. In § 640.2, the definition for “Regional Director” is removed, the definition for “Spiny lobster” is revised, and definitions for “Import” and “Regional Administrator” are added in alphabetical order to read as follows:
(1) To land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States; but
(2) Does not include any activity described in paragraph (1) of this definition with respect to fish caught in the U.S. exclusive economic zone by a vessel of the United States.
10. In § 640.3, paragraph (a) is revised, and paragraph (c) is added to read as follows:
(a) The relation of this part to other laws is set forth in § 600.705 of this chapter and paragraphs (b) and (c) of this section.
(c) Regulations pertaining to additional prohibitions on importation of spiny lobster into Puerto Rico or the U.S. Virgin Islands are set forth in part 622 of this chapter.
11. In § 640.7, introductory text is revised, and paragraph (w) is added to read as follows:
In addition to the general prohibitions specified in § 600.725 of this chapter, it is unlawful for any person to do any of the following:
(w) Fail to comply with the spiny lobster import prohibitions, as specified in § 640.27.
12. Section 640.8 is revised to read as follows:
See § 600.730 of this chapter.
13. Section 640.9 is revised to read as follows:
See § 600.735 of this chapter.
14. Section 640.27 is added to subpart B to read as follows:
(a)
(1) No person may import a spiny lobster with less than a 5–ounce (142–gram) tail weight into any place subject to the jurisdiction of the United States excluding Puerto Rico and the U.S. Virgin Islands. For the purposes of paragraph (a) of this section, a 5–ounce (142–gram) tail weight is defined as a tail that weighs 4.2–5.4 ounces (119–153 grams). If the documentation accompanying an imported spiny lobster (including but not limited to product packaging, customs entry forms, bills of lading, brokerage forms, or commercial invoices) indicates that the product does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster actually does satisfy the minimum tail-weight requirement or that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the imported product itself does not satisfy the minimum tail-weight requirement, the person importing such spiny lobster has the burden to prove that such spiny lobster has a tail length of 5.5 inches (13.97 cm) or greater or that such spiny lobster has or had a carapace length of greater than 3.0 inches (7.62 cm). If the burden is satisfied, such spiny lobster will be considered to be in compliance with the minimum 5–ounce (142–gram) tail-weight requirement.
(2) See § 622.50 of this chapter regarding a more restrictive minimum
(b) Additional spiny lobster import prohibitions -(1) Prohibition related to tail meat. No person may import into any place subject to the jurisdiction of the United States spiny lobster tail meat that is not in whole tail form with the exoskeleton attached.
(2) Prohibitions related to egg-bearing spiny lobster. No person may import into any place subject to the jurisdiction of the United States spiny lobster with eggs attached or spiny lobster from which eggs or pleopods (swimmerets) have been removed or stripped. Pleopods (swimmerets) are the first five pairs of abdominal appendages.
15. In addition to the amendments set forth above, in 50 CFR part 640, remove the words “Magnuson Act” and “Regional Director” and add in their places the words “Magnuson-Stevens Act” and “Regional Administrator”, respectively, wherever they occur.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is an extension to a currently approved collection for the National School Lunch Program.
Written comments must be submitted by December 29, 2008.
Comments may be sent to: Lynn Rodgers-Kuperman, Chief, Program Analysis and Monitoring Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 640.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record.
Requests for additional information should be directed to Ms. Lynn Rodgers-Kuperman at (703) 305–2590.
The reporting and recordkeeping burdens associated with administration of the NSLP by States and participating schools proposed for extension under this notice reflect both those in place since this collection was extended in 2006, and an increase made in support of implementation of the Department of Agriculture's rule, Procurement Requirements for the National School Lunch, School Breakfast and Special Milk Programs. The public received an opportunity to comment on this increase when the proposed rule was published (69 FR 78340
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 Wendy Liberante, OMB Desk Officer, Fax number (202) 395–7285 or via the Internet at
Bureau of Industry and Security, Department of Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 29, 2008.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Larry Hall, BIS ICB Liaison, (202) 482–4895,
This collection of information is required by Export Administration Regulations and the Federal Advisory Committee Act. The Technical Advisory Committees (TACs) were established to advise and assist the U.S. Government on export control matters. Under this collection, interested parties may submit a request to BIS to establish a new TAC. BIS provides administrative support for these Committees.
Submitted in paper form.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Industry and Security, Commerce.
Request for comments.
The Bureau of Industry and Security (BIS) is requesting public comments on the effectiveness of its licensing procedures as defined in the Export Administration Regulations for the export of agricultural commodities to Cuba. BIS will include a description of these comments in its biennial report to the Congress, as required by the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7201
Comments must be received by November 28, 2008.
Written comments may be sent by email to
Alan W. Christian, Office of Nonproliferation and Treaty Compliance, Telephone: (202) 482–4252. Additional information on BIS procedures and our previous biennial report under the Trade Sanctions Reform and Export Enhancement Act, as amended, are available at
The public comments are displayed on BIS's Freedom of Information Act (FOIA) Web site at
The Bureau of Industry and Security (BIS) authorizes exports of agricultural commodities to Cuba pursuant to section 906(a) of the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA) (22 U.S.C. 7205(a)), under the procedures set forth in section 740.18 of the Export Administration Regulations (EAR) (15 CFR 740.18). These are the only licensing procedures in the EAR currently in effect pursuant to the requirements of section 906(a) of TSRA.
Under the provisions of section 906(c) of TSRA (22 U.S.C. 7205(c)), BIS must submit a biennial report to the Congress on the operation of the licensing system implemented pursuant to section 906(a) for the preceding two-year period. This report is to include the number and types of licenses applied for, the number and types of licenses approved, the average amount of time elapsed from the date of filing of a license application until the date of its approval, the extent to which the licensing procedures were effectively implemented, and a description of comments received from interested parties during a 30-day public comment period about the effectiveness of the licensing procedures. BIS is currently preparing a biennial report on the operation of the licensing system for the two-year period from October 1, 2006 through September 30, 2008.
By this notice, BIS requests public comments on the effectiveness of the licensing procedures for the export of agricultural commodities to Cuba set forth under section 740.18 of the EAR. Parties submitting comments are asked to be as specific as possible. All comments received by the close of the comment period will be considered by BIS in developing the report to Congress.
All information relating to the notice will be a matter of public record and will be available for public inspection and copying. In the interest of accuracy and completeness, BIS requires written comments.
Import Administration, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (“the Department”) is extending the time limit for the final results of the changed circumstances review of the antidumping duty order on certain hot–rolled carbon steel flat products (“hot–rolled steel”) from Thailand. The period of review is October 1, 2005, through September 30, 2006. This extension is made pursuant to 19 CFR 351.216(e).
John Drury or Angelica Mendoza, 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) 482–0195 or (202) 482–3019, respectively.
BACKGROUND: On November 29, 2001, the Department published the antidumping duty order on hot–rolled steel from Thailand.
In its revocation request, SSI agreed to immediate reinstatement in the Hot–Rolled Steel Order, so long as any producer or reseller is subject to the order, should the Department determine that SSI “sold the subject merchandise at less than normal value.”
As the result of an adequate allegation from a domestic interested party in this proceeding (
Under 19 CFR 351.216(e), the Department will issue the final results of a changed circumstances review within 270 days after the date on which the Department initiates the changed circumstances review. Currently, the final results of this antidumping duty changed circumstances review on hot–rolled steel from Thailand are due by December 23, 2008. Due to the nature of this changed circumstances review and the complexities of the issues, the Department finds that it is not practicable to complete the review within this time period. Moreover, the Department plans to conduct verification of SSI's sales responses. As a result, pursuant to 19 CFR 351.302(b), we are extending the time limit for completion of the review by 120 days.
This notice is published in accordance with sections 751(b) and 771(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is extending the time limit for the final results of the administrative review of the antidumping duty order on certain stainless steel butt–weld pipe fittings from Taiwan. The period of review is June 1, 2006, through May 31, 2007. This extension is made pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act).
October 29, 2008.
John Drury or Angelica Mendoza, Office 7, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482–0195 and (202) 482–3019, respectively.
On July 8, 2008, the Department published the preliminary results of the administrative review of the antidumping duty order on certain stainless steel butt–weld pipe fittings from Taiwan covering the period June 1, 2006, through May 31, 2007.
Section 751(a)(3)(A) of the Act requires the Department to issue the final results in an administrative review within 120 days of the publication of the preliminary results. 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 time limit for the final results to 180 days (or 300 days if the Department does not extend the time limit for the preliminary results) from the date of publication of the preliminary results.
In accordance with section 751(a)(3)(A) of the Act, and 19 CFR 351.213(h)(2), the Department finds that it is not practicable to complete the review within the original time frame (
This notice is published pursuant to section 751(a)(3)(A) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with September anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews. The Department also received a request to defer the initiation of an administrative review for one antidumping duty order.
October 29, 2008.
Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, telephone: (202) 482–4697.
The Department has received timely requests, in accordance with 19 CFR 351.213(b) (2007), for administrative reviews of various antidumping and countervailing duty orders and findings with September anniversary dates. The Department also received a request in accordance with 19 CFR 351.213(c) to defer for one year the initiation of the August 1, 2008 through July 31, 2008, antidumping duty administrative review of the antidumping duty order on Floor–Standing Metal–Top Ironing Tables from the People's Republic of China.
Under 19 CFR 351.213(d)(3), the Department may rescind a review where there are no exports, sales, or entries of subject merchandise during the respective period of review listed below. If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review, it should notify the Department within 30 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review (POR). We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of this initiation notice and to make our decision regarding respondent selection within 20 days of publication of this
In proceedings involving non–market economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
In accordance with the separate–rates criteria, the Department assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both
All firms listed below that wish to qualify for separate–rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate–rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate–rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on the Department's website at http://www.trade.gov/ia on the date of publication of this
For entities that have not previously been assigned a separate rate, to demonstrate eligibility for such, the Department requires a Separate Rate Status Application.
The Separate Rate Status Application will be available on the Department's website at http://www.trade.gov/ia on the date of publication of this
In accordance with sections 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend
to issue the final results of these reviews not later than September 30, 2009. Also, in accordance with 19 CFR 351.213(c) we are deferring for one year the initiation of the August 1, 2007 through July 31, 2008 administrative review of the antidumping duty order on Floor–Standing Metal–Top Ironing Tables from the People's Republic of China (A–570–888) with respect to one exporter.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305.
These initiations and this notice are in accordance with section 751(a) of the Act, (19 USC 1675(a)) and 19 CFR 351.221(c)(1)(I).
NAFTA Secretariat, United States Section, International Trade Administration, Department of Commerce.
Notice of Completion of Panel Review of the final injury determination in the five year antidumping review by the U.S. International Trade Commission, in the matter of Stainless Steel Sheet and Strip from Mexico, Secretariat File No. USA–MEX–2005–1904–06.
Pursuant to the Order of the Binational Panel dated September 10, 2008, affirming the final determination described above, the panel review was completed on September 22, 2008.
Marsha Ann Y. Iyomasa, Deputy United States Secretary, NAFTA Secretariat, Suite 2061, 14th and Constitution Avenue, NW., Washington, DC 20230, (202) 482–5438.
On September 10, 2008, the Binational Panel issued an order affirming the final determination of the United States International Trade Commission (ITC) concerning stainless steel sheet and strip from Mexico. The Secretariat was instructed to issue a Notice of Completion of Panel Review on the 31st day following the issuance of the Notice of Final Panel Action, if a request for an Extraordinary Challenge was not filed. No such request was filed. Therefore, on the basis of the Panel Order and Rule 80 of the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Extension of comment period.
In order to provide additional opportunities for the public, the Atlantic Regional Fishery Management Councils, the Atlantic and Gulf States Marine Fisheries Commissions, and other interested parties to comment on the Notice of Intent (NOI) and issues and options scoping presentation for Amendment 3 to the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP), NMFS is extending the scoping comment period for this action. On May 7, 2008, NMFS published an NOI to initiate an amendment to the 2006 Consolidated HMS FMP, including an Environmental Impact Statement. On July 2, 2008, NMFS published a notice that announced the availability of an issues and options scoping presentation describing potential measures for inclusion in Amendment 3 to the 2006 Consolidated HMS FMP and provided
The deadline for comments on the NOI and the issues and options scoping presentation has been extended from October 31, 2008, as published on July 2, 2008 (73 FR 37932), to 5:00 p.m. on November 14, 2008.
As published on July 2, 2008 (73 FR 37932), written comments on this action should be sent to Karyl Brewster–Geisz, Highly Migratory Species Management Division, by any of the following methods:
• E–mail:
• Written: 1315 East–West Highway, Silver Spring, MD 20910. Please mark the outside of the envelope “Scoping Comments on Amendment 3 to Consolidated HMS FMP.”
• Fax: (301) 713–1917.
For a copy of the related stock assessments or any other related documents, please contact Jessica Beck at (301) 713–2347.
Jessica Beck at (301) 713–2347, or Jackie Wilson at (240) 338–3936.
The Atlantic shark fisheries are managed under the authority of the Magnuson–Stevens Fishery Conservation and Management Act (Magnuson–Stevens Act). The 2006 Consolidated HMS FMP is implemented by regulations at 50 CFR part 635.
On May 7, 2008 (73 FR 25665), NMFS published an NOI that summarized the 2007 Small Coastal Shark (SCS) stock assessment conducted for Atlantic sharpnose, blacknose, bonnethead, and finetooth sharks. The NOI also described NMFS's determination of the status of these stocks based on the results of the 2007 stock assessment, including the determination that blacknose sharks are overfished with overfishing occurring. As a result of this determination, NMFS is taking steps to amend current shark management measures via a third FMP amendment to the 2006 Consolidated HMS FMP. On July 2, 2008 (73 FR 37932), NMFS published a notice that announced the availability of an issues and options scoping presentation describing potential measures for inclusion in Amendment 3 to the 2006 Consolidated HMS FMP and provided details for four scoping meetings to discuss and collect comments on these issues. NMFS anticipates completing this amendment and any related documents by January 1, 2010.
Due to the timing of the Gulf of Mexico Fishery Management Council's meeting at the end of October, NMFS is extending the comment period to provide additional opportunity for the public, the Atlantic Regional Fishery Management Councils, the Atlantic and Gulf States Marine Fisheries Commissions, and other interested parties to comment on potential SCS management measures. These comments will assist NMFS in determining the options for rulemaking to conserve and manage shark resources and fisheries, consistent with the Magnuson–Stevens Act and the 2006 Consolidated HMS FMP.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding a new OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request for approval of a new information collection requirement regarding small business size rerepresentation. A request for public comments was published in the
Submit comments on or before: November 28, 2008.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the Regulatory Secretariat (VPR), General Services Administration, Room 4041, 1800 F Street, NW., Washington, DC 20405. Please cite OMB Control No. 9000–XXXX, Small Business Size Rerepresentation, in all correspondence.
Ms. Rhonda Cundiff, Contract Policy Division, GSA (202) 501–0044.
The purpose of implementing small business rerepresentation in the FAR is to ensure that small business size status is accurately represented and reported over the life of long-term contracts. The FAR also provides for provisions designed to ensure more accurate reporting of size status for contracts that are novated, merged or acquired by another business. This information is used by the SBA, Congress, Federal agencies and the general public for various reasons such as determining if agencies are meeting statutory goals, set-aside determinations, and market research.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information
Interested persons are invited to submit comments on or before December 29, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 29, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Responses: 360,010.
Burden Hours: 181,110.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Catalog of Federal Domestic Assistance (CFDA) Number 84.215X.
Office of Innovation and Improvement, Department of Education.
Notice of proposed revisions to selection criteria.
The Assistant Deputy Secretary for Innovation and Improvement proposes to amend the final selection criteria governing the Teaching American History Grant Program (TAH) as published in the notice of final selection criteria and other application requirements (2005 Notice) in the
We must receive your comments on or before November 28, 2008.
Address all comments about this notice to Mia Howerton, U.S. Department of Education, 400 Maryland Avenue, SW., Room 4W212, Washington, DC 20202–5960.
If you prefer to send your comments by e-mail, use the following address:
Mia Howerton. Telephone: (202) 205–0147 or e-mail:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
During and after the comment period, you may inspect all public comments on this notice in room 4W212, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Washington, DC, time, Monday through Friday of each week except Federal holidays.
20 U.S.C. 6721–6722.
The Department's regulations in EDGAR govern, among other things, the Department's use of selection criteria to evaluate discretionary grant applications. Under § 75.200, the Secretary may use selection criteria based on statutory provisions in accordance with 34 CFR 75.209, selection criteria in program-specific regulations, selection criteria established under 34 CFR 75.210, or any combination of these. Section 75.210 provides a menu of selection criteria. For a competition, the Department selects from the menu one or more criteria that best enable us to identify the highest-quality applications consistent with the program purpose, statutory requirements, and any priorities established. Within each criterion, the Secretary may further define the criterion by selecting one or more specific factors.
The 2005 Notice established specific selection criteria by which the Department would evaluate TAH applications (Project Quality, Significance, Quality of Project Evaluation, and Quality of Management Plan) and other application requirements.
After using these specific criteria for the last three years, we have determined that the Department needs greater flexibility in using selection criteria to evaluate TAH program applications. Accordingly, we are proposing in this notice that, in addition to the criteria established for the TAH program in the 2005 Notice, the Secretary also may use selection criteria under § 75.210 and criteria based on the program statute under § 75.209, or any combination of these criteria for the purpose of evaluating grant applications under the TAH program. We believe that by expanding the range of selection criteria that could be used in a specific grant competition, we will be able to administer the TAH program more
The Assistant Deputy Secretary for Innovation and Improvement proposes that in addition to the selection criteria established in the 2005 Notice, the Secretary may use any of the selection criteria in § 75.210, criteria based on statutory requirements under § 75.209, or any combination of these when establishing selection criteria for a particular TAH competition. We may apply one or more of these criteria in any year in which this program is in effect. In the notice inviting applications or the application package, or both, we will announce the maximum possible points assigned to each criterion.
This notice does
Under Executive Order 12866, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with this proposed regulatory action are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this regulatory action, we have determined that the benefits would justify the costs.
We have also determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
This proposed regulatory action affects only local educational agencies (LEAs) that are applying for assistance under the TAH program. This regulatory action would create flexibility for the Department to use selection criteria, other than those published in the 2005 Notice, for the 2009 TAH grant competition and those in subsequent years. We believe that any criterion from 34 CFR 75.209 or 34 CFR 75.210 that would be used in a future grant competition would not impose a financial burden that LEAs would not otherwise incur in the development and submission of a grant application under the TAH program and, under some circumstances, could reduce the financial burden of preparing a TAH grant application by a modest amount if, for example, the use of this flexibility resulted in fewer criteria or factors to be addressed in a grant application.
This document provides early notification of our specific plans and actions for this program.
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.
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Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. No. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, November 20, 2008; 6 p.m.
Barkley Centre, 111 Memorial Drive, Paducah, Kentucky 42001.
Reinhard Knerr, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, MS–103, Paducah, Kentucky 42001, (270) 441–6825.
• Call to Order, Introductions, Review of Agenda.
• Deputy Designated Federal Officer's Comments.
• Federal Coordinator's Comments.
• Liaisons' Comments.
• Presentations.
• Public Comments.
• Administrative Issues.
○ Motions.
○ Recommendations.
• Final Comments.
• Adjourn.
Breaks taken as appropriate.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Applicants: Midwest Independent Transmission System Operator Inc, Midwest ISO Transmission Owners.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) 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
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C.
Additional comments may be submitted on or before November 28, 2008.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2008–0297, to (1) EPA online using
María Malavé, Compliance Assessment and Media Programs Division, Mail Code 2223A, Office of Compliance, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564–7027; fax number: (202) 564–0050; 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 May 30, 2008 (73 FR 31088), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2008–0297, which is available for public viewing online at
Use EPA's electronic docket and comment system at
Owners or operators of coke oven batteries, whether existing, new, reconstructed, rebuilt or restarted, are required to comply with monitoring, recordkeeping and reporting requirements. Owners or operators of the affected facilities described must make one-time-only notifications to select a compliance track and to certify initial compliance. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Monitoring requirements specific to coke oven batteries provide information on the operation of the emissions control device and compliance with the visible emissions standard. Semiannual reports of compliance certifications are required. These notifications, reports, and records will be used by EPA and the states to: (1) Identify batteries subject to the standards; (2) ensure that MACT and LAER are properly applied; and (3) ensure that daily monitoring and work practice requirements are implemented as required.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before November 28, 2008.
Submit your comments, referencing docket ID number EPA–HQ–OECA–2008–0422, to (1) EPA online using
John Schaefer, Office of Air Quality Planning and Standards, Sector Policies and Programs Division (D243–05), Measurement Policy Group, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–0296; fax number: (919) 541–3207; 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 May 30, 2008 (73 FR 31088), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA–HQ–OECA–2008–0422, which is available for public viewing either online at
Use EPA's electronic docket and comment system at
In general, all New Source Performance Standards (NSPS) require initial notifications, performance tests, and periodic reports. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all sources subject to NSPS.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of an amendment to EPA's Reregistration Eligibility Decision (RED) for Carbaryl, and EPA's response to a petition from the Natural Resources Defense Council (NRDC), insofar as the petition seeks to have EPA cancel all registrations for carbaryl. In the carbaryl RED amendment, EPA is modifying certain worker risk mitigation measures that were imposed as a result of the 2004 Interim RED for the pesticide carbaryl. EPA is amending the carbaryl RED to incorporate the revised occupational exposure and risk assessment for carbaryl. EPA reevaluated the carbaryl risk assessments and regulatory decision in response to public comments received from numerous parties, new data submitted by the technical registrant, Bayer CropSciences, and new science and new methodologies developed in the time between the completion of the Interim RED for carbaryl and the completion of the cumulative risk assessment for the N-methyl carbamate group of pesticides. This notice also announces the availability of EPA's response to a petition from NRDC insofar as it seeks to have EPA cancel all uses of carbaryl under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Elsewhere in today's
Christina Scheltema, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308–2201; fax number: (703) 308–2201; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
This notice announces the availability of an amendment to EPA's Reregistration Eligibility Decision (RED) for Carbaryl. EPA is amending the carbaryl RED to incorporate the revised occupational exposure and risk assessment for carbaryl, which was not included in the September 2007 carbaryl RED. As a result, EPA is modifying certain worker risk mitigation measures that were imposed in the 2004 Interim RED for the pesticide carbaryl.
Under section 4 of FIFRA, EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. In 2007, EPA issued a RED for carbaryl under section 4(g)(2)(A) of FIFRA. In 2004, EPA issued an interim RED for carbaryl. In response to a notice of availability published in the
This notice also announces the availability of EPA's response to a petition submitted by NRDC insofar as the petition seeks to have EPA cancel all registrations for carbaryl. (EPA's response to this petition is available in the carbaryl RED docket, EPA–HQ–OPP–2007–0941.) Elsewhere in today's
Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product-specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Environmental protection, Carbaryl, Pesticides.
Environmental Protection Agency (EPA).
Notice of Peer-Review Meeting; correction.
EPA announced on October 16, 2008 (73 FR 61416), that the National Academy of Sciences (NAS) will convene an independent panel of experts and organize and conduct a review of the draft document titled, “Toxicological Review of Tetrachloroethylene (Perchloroethylene): In Support of Summary Information on the Integrated Risk Information System (IRIS)” (EPA/635/R–08/011A). The document contained an incorrect meeting location.
In the
The peer-review panel meeting will be held at The National Academy of Sciences, 2100 C Street, NW., Room 150, Washington, DC 20418. For details about registering for and attending the meeting, please see the NAS's Web site at
Questions regarding information, registration, access or services for individuals with disabilities, or logistics for the external peer-review panel meeting should be directed to NAS. For further information, please see the NAS's Web site
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's preliminary determination to terminate the Special Review of ethylene oxide (ETO). On January 27, 1978, EPA initiated Special Review based on developmental toxicity, mutagenicity, and neurotoxic effects in workers (43 FR 3801). In the early 1980s, the carcinogenicity of ETO became of concern and was added to the Special Review. Since the initiation of the Special Review, additional data and more comprehensive reviews of potential risks associated with ETO exposure have been completed, including those described in the 2006 Tolerance Reassessment and Risk Management Decision (TRED)
Comments must be received on or before November 28, 2008.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2005–0283, by one of the following methods:
•
•
•
Susan Bartow, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: 703-603-0065; fax number: 703-308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
On January 27, 1978, EPA initiated Special Review based on developmental toxicity, mutagenicity, and neurotoxic effects in workers (43 FR 3801). In the early 1980s, the carcinogenicity of ETO became of concern and was added to the Special Review. Since the initiation of the Special Review, additional data and more comprehensive reviews of potential risks associated with ETO exposure have been completed, including those described in the 2006 TRED
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
(1) Any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide; or
(2) A human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 408 of the Federal Food, Drug and Cosmetic Act FIFRA section 2(bb)
.The burden of proving that a pesticide meets this standard for registration is, at all times, on the proponent of initial or continued registration. If at any time the Agency determines that a pesticide no longer meets this standard, the Administrator may cancel this registration under section 6 of FIFRA.
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final Determination pursuant to a Special Review describing the regulatory action which the Administrator has selected. The Special Review process, which was previously called the Rebuttable Presumption Against Registration (RPAR) process, is set forth in 40 CFR part 154, published in the
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR 154.21 announcing that the Administrator may initiate a Special Review of a pesticide use. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's preliminary notification that it may commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will initiate a Special Review, 40 CFR 154.25(c) requires the Administrator to publish a Notice of Special Review in the
That regulation requires the Administrator to respond to all significant comments received on the Notice of Special Review and, among other things, make a preliminary determination of whether any of the applicable risk criteria have been satisfied. Finally, after receipt and evaluation of comments on the Notice of Preliminary Determination, 40 CFR 154.33 requires that the Administrator publish in the
Environmental protection, Pesticides, Pests.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. EPA is issuing a notice of receipt of a request by the registrant to voluntarily cancel its registration for a product containing the pesticide nicotine. The request would terminate nicotine use on greenhouse-grown ornamentals. The request would terminate the last nicotine product registered for use in the United States. EPA intends to grant this request at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the request, or unless the registrant withdraws its request within this period. Upon acceptance of this request, any sale, distribution, or use of products listed in this notice will be permitted only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before April 27, 2009.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2007–1019, by one of the following methods:
•
•
•
Jill Bloom, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308–8019; 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
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
This notice announces receipt by EPA of a request from the registrant, Fuller System, Inc., (Fuller) to cancel one of its product registrations. The affected nicotine product is labeled for use on greenhouse-grown ornamentals such as poinsettia, chrysanthemum, and bedding plants for the control of aphids, thrips, and whiteflies. In a letter dated February 25, 2008, Fuller requested that EPA cancel the affected product registration identified in this notice (see Table 1). Specifically, the Agency became aware during its assessment of the reregistration eligibility of nicotine that the pesticide-specific database for nicotine was insufficient, even when taking into account information available in the open literature. Had the registration been allowed to continue, this lack of data would have necessitated that the Agency issue a Data Call-In notice for specific nicotine data elements, particularly toxicity data. Fuller decided to request product phase-out rather than develop these data. Fuller requested that:
1. It be permitted to produce and sell its nicotine product until December 31, 2013.
2. Distributors be permitted to sell the product until December 31, 2014.
3. Users be permitted to use the product until stocks are depleted
.In addition, Fuller has agreed to implement several risk–reduction measures in the interim before cancellation becomes effective. The measures will take the form of revised labeling that:
1. Prohibits the use of the nicotine product in non-commercial greenhouses.
2. Prohibits the use of the nicotine product on plants grown for cut flowers.
3. Prohibits worker reentry into a treated greenhouse for at least 24 hours after application and until Worker Protection Standards (WPS) ventilation criteria have been met, except for appropriately trained and equipped workers.
4. Prohibits the sale or transfer of treated plants for 24 hours following application. These measures address potential risks of concern identified by the Agency in the nicotine Reregistration Eligibility Decision (RED).
Fuller's nicotine product is used only on greenhouse-grown ornamentals; this action would terminate the last nicotine pesticide product registered in the United States for any use
.This notice announces receipt by EPA of a request from a registrant to cancel a nicotine product registration. The affected product and the registrant making the request are identified in Tables 1 and 2 of this unit
.Under section 6(f)(1)(A) of FIFRA, registrants may request, at any time, that their pesticide registrations be canceled or amended to terminate one or more pesticide uses. Section 6(f)(1)(B) of FIFRA requires that before acting on a request for voluntary cancellation, EPA must provide a 30–day public comment period on the request for voluntary cancellation or use termination. In addition, section 6(f)(1)(C) of FIFRA requires that EPA provide a 180–day comment period on a request for voluntary cancellation or termination of any minor agricultural use before granting the request, unless:
1. The registrants request a waiver of the comment period, or
2. The Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The nicotine registrant has not requested that EPA waive the 180–day comment period. EPA will provide a 180–day comment period on the request for cancellation.
Unless a request is withdrawn by the registrant within 180 days of publication of this notice, or if the Agency determines that there are substantive comments that warrant further review of this request, an order will be issued canceling the affected registration.
Table 2 of this unit shows the name and address of record for the registrant of the product listed in Table 1 of this unit.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before
Registrants who choose to withdraw a request for cancellation must submit such withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the cancellation action.
In any order issued in response to this request for cancellation of a product registration, EPA proposes to include the following provisions for the treatment of any existing stocks of the products identified or referenced in Table 1 in Unit III. Fuller will be permitted to produce and sell its nicotine product (Fulex Nicotine Fumigator, EPA Registration Number 1327–41) until December 31, 2013.Distributors will be permitted to sell this product until December 31, 2014. The use of this product will be permitted until existing stocks are depleted.
If the request for voluntary cancellation is granted, the Agency intends to publish the cancellation order in the
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces Agency approval of an application to register the pesticide product Bedoukian e,e-9,11-Tetradecdienyl Acetate Technical Pheromone] containing an active ingredient not included in any previously registered products pursuant to the provisions of section 3(c)(5) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Chris Pfeifer, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308–0031; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
In accordance with section 3(c)(2) of FIFRA, a copy of the approved label, the list of data references, the data and other scientific information used to support registration, except for material specifically protected by section 10 of FIFRA, are also available for public inspection. Requests for data must be made in accordance with the provisions of the Freedom of Information Act and must be addressed to the Freedom of Information Office A–101, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001. Such requests should: Identify the product name and registration number and specify the data or information desired.
A paper copy of the fact sheet, which provides more detail on this registration, may be obtained from the National Technical Information Service (NTIS), 5285 Port Royal Rd., Springfield, VA 22161.
2.
The Agency approved the application after considering all required data on risks associated with the proposed use of [9,11-tetradecadien-1-ol, 1-acetate, (9E,11E), and information on social, economic, and environmental benefits to be derived from use. Specifically, the Agency has considered the nature of the chemical and its pattern of use, application methods and rates, and level and extent of potential exposure. Based on these reviews, the Agency was able to make basic health and safety determinations which show that use of 9,11-tetradecadien-1-ol, 1-acetate, (9E,11E) when used in accordance with widespread and commonly recognized practice, will not generally cause
EPA issued a notice, published in the
The application was approved on August 5, 2008, as Bedoukian e,e-9,11-Tetradecdienyl Acetate Technical Pheromone (EPA Registration Number 52991–22) for incorporation into end use products intended to control the Light Brown Apple Moth (LBAM). (J.Pfeifer).
Environmental protection, Chemicals, Pests and pesticides.
Environmental Protection Agency (EPA).
Notice.
This notice announces Agency approval of an application submitted by Syngenta Seeds, Inc., to conditionally register the pesticide product VipCot containing new active ingredients not included in any previously registered products pursuant to the provisions of section 3(c)(7)(C) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Alan Reynolds, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 605–0515; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
In accordance with section 3(c)(2) of FIFRA, a copy of the approved label, the list of data references, the data and other scientific information used to support registration, except for material specifically protected by section 10 of FIFRA, are also available for public inspection. Requests for data must be made in accordance with the provisions of the Freedom of Information Act and must be addressed to the Freedom of Information Office (A–101), 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001. Such requests should: Identify the product name and registration number and specify the data or information desired.
Electronic versions of the fact sheet and Biopesticide Regulatory Action Document are available at
2.
A conditional registration may be granted under section 3(c)(7)(C) of FIFRA for a new active ingredient where certain data are lacking, on condition that such data are received by the end of the conditional registration period and do not meet or exceed the risk criteria set forth in 40 CFR 154.7; that use of the pesticide during the conditional registration period will not cause unreasonable adverse effects; and that use of the pesticide is in the public interest. The Agency has considered the available data on the risks associated with the proposed use of
Consistent with section 3(c)(7)(C) of FIFRA, the Agency has determined that these conditional registrations are in the public interest. Use of the pesticides are of significance to the user community, and appropriate labeling, use directions, and other measures have been taken to
EPA issued a notice, published in the
The application was conditionally approved on June 26, 2008, as VipCot Cotton (EPA Registration Number 67979–9). The product is a plant-incorporated protectant for use on cotton.
Environmental protection, Chemicals, Pests and pesticides.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register pesticide products containing new active ingredients not included in any currently registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Comments must be received on or before November 28, 2008.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2008–0751, by one of the following methods:
•
•
•
Chris Pfeifer, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308–0031; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
Environmental protection, Pesticides and pest.
Environmental Protection Agency (EPA).
Notice.
This notice announces receipt of applications to register pesticide products containing new active ingredients not included in any currently registered products pursuant to the provisions of section 3(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.
Comments must be received on or before November 28, 2008
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2008–0742, by one of the following methods:
•
•
•
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA received applications as follows to register pesticide products containing active ingredients not included in any previously registered products pursuant to the provision of section 3(c)(4) of FIFRA. Notice of receipt of these applications does not imply a decision by the Agency on the applications.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
In accordance with section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. 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 amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request in the
The deletions are effective by April 27, 2009 or November 28, 2008 for registrations for which the registrant requested a waiver of the 180–day comment period. The Agency will consider withdrawal requests postmarked no later than April 27, 2009 or November 28, 2008, whichever is applicable. Comments must be received on or before April 27, 2009 or November 28, 2008, for those registrations where the 180–day comment period has been waived.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before April 27, 2009 or November 28, 2008 for registrations for which the registrant requested a waiver of the 180–day comment period.
Submit your withdrawal request, identified by docket identification (ID) number EPA–HQ–OPP–2008–0761, by one of the following methods:
•
•
John Jamula, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–6426; e-mail address:
This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, 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 information in this notice, consult the person listed under
1.
2.
This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 of this unit by registration number, product name, active ingredient, and specific uses deleted:
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant before April 27, 2009 or November 28, 2008 for registrations for which the registrant requested a waiver of the 180–day comment period to discuss withdrawal of the application for amendment. This time period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion. A request to waive the 180–day comment period has been received for the following registrations: 769–574; 769–728; 769–971; 769–972; 769–976; 39967–10; 39967–13; 43813–2; 43813–6.
Table 2 of this unit includes the names and addresses of record for all registrants of the products listed in Table 1 of this unit, in sequence by EPA company number.
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 amended to delete one or more uses. The FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for use deletion must submit the withdrawal in writing to John Jamula using the methods in
The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA’s final registration review decision for the pesticide case sulfluramid. Registration review is EPA’s periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, that the pesticide can perform its intended function without causing unreasonable adverse effects on human health or the environment. Through this program, EPA is ensuring that each pesticide’s registration is based on current scientific and other knowledge (including its effects on human health and the environment).
Rosanna Louie, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308–0037; fax number: (703) 308–8005; e-mail address:
For general questions on the registration review program, contact Kevin Costello, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–5026; fax number: (703) 308–8090; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
This notice announces the final registration review decisions for the sulfluramid case as shown in Table 1.
The docket for registration review of this pesticide case includes the final registration review decision document as well as other relevant documents related to the registration review of the subject case. The proposed registration review decision was posted to the docket for the above case and the public was invited to submit any comments or new information. During the 60–day comment period, no public comments were received for the sulfluramid case.
Background on the registration review program is provided at:
FIFRA Section 3(g) and 40 CFR 155.57 and 155.58 provide authority for this action.
A registration review decision is the Agency’s determination whether a pesticide meets, or does not meet, the standard for registration in FIFRA. This final decision continues to be supported by the rationales included in the proposed final decision for sulfluramid. The documents in the docket describe the Agency’s rationale for issuing a registration review final decision for sulfluramid. No additional risk mitigation measures are required or specified for products containing sulfluramid and no labeling changes are currently required as a result of this final decision.
Environmental protection, Registration review, Pesticides, Pests, and Sulfluramid.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's Reregistration Eligibility Decision (RED) for the pesticide triclosan, and opens a public comment period on this document. The Agency's risk assessments and other related documents also are available in the triclosan Docket. Triclosan is regulated by both the U.S. EPA and the U.S. Food and Drug Administration (FDA). The EPA regulates the antimicrobial uses of triclosan when used as a bacteriostat, fungistat, mildewstat, and deodorizer. EPA has reviewed triclosan through the public participation process that the Agency uses to involve the public in developing pesticide reregistration and tolerance reassessment decisions. Through these programs as mentioned in Unit II.A. of the
Comments must be received on or before December 29, 2008.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2007-0513, by one of the following methods:
•
•
•
Heather Garvie, Antimicrobials Division (7510P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 308-0034; fax number: (703) 305-5620; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. EPA has completed a RED for the pesticide, triclosan under section 4(g)(2)(A) of FIFRA. Triclosan is regulated by both EPA and the U.S. Food and Drug Administration (FDA). EPA regulates the antimicrobial uses of triclosan when used as a bacteriostat, fungistat, mildewistat, and deodorizer. Triclosan is used in commercial, institutional and industrial premises and equipment; residential and public access premises; and as material preservative. Commercial, institutional and industrial premises and equipment uses include conveyor belts, fire hoses, dye bath vats and ice making equipment. As a material preservative, triclosan is used in many products including adhesives, fabrics, vinyl, plastics (toys, toothbrushes), polyethylene, polyurethane, polypropylene, floor wax emulsions, textiles (footwear, clothing), caulking compounds, sealants, rubber, and latex paints. There are a multitude of residential and public access premises uses including direction application to HVAC coils (limited to commercial applicators), and use as a materials
EPA has determined that the data base to support reregistration is substantially complete and that products containing triclosan are eligible for reregistration provided the risks are mitigated either in the manner described in the RED or by another means that achieves equivalent risk reduction. Upon submission of any required product specific data under section 4(g)(2)(B) of FIFRA and any necessary changes to the registration and labeling (either to address concerns identified in the RED or as a result of product specific data), EPA will make a final reregistration decision under section 4(g)(2)(C) of FIFRA for products containing triclosan.
Although the triclosan RED was signed on September 18, 2008, certain components of the document, which did not affect the final regulatory decision, were undergoing final editing at that time. These components, the appendices, have been added to the triclosan RED document.
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
The reregistration program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. The Agency is issuing the triclosan RED for public comment. This comment period is intended to provide an additional opportunity for public input and a mechanism for initiating any necessary amendments to the RED. All comments should be submitted using the methods in
The Agency will carefully consider all comments received by the closing date and will provide a Response to Comments Memorandum in the Docket and regulations.gov. If any comment significantly affects the document, EPA also will publish an amendment to the RED in the
Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration, before calling in product specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Environmental protection, Pesticides and pests, antimicrobials, triclosan.
U.S. Equal Employment Opportunity Commission (EEOC).
Notice of Membership of the EEOC Performance Review Board.
Notice is hereby given of the appointment of members to the EEOC Performance Review Board.
Joann C. Riggs, Acting Chief Human Capital Officer, Office of Human Resources, U.S. Equal Employment Opportunity Commission, 1801 L Street, NW., Washington, DC 20507, (202) 663–4306.
Publication of the Performance Review Board (PRB) is required by 5 U.S.C. Section 4314(c)(4). The PRB reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes written recommendations regarding performance ratings, performance awards, potential Presidential Rank Award nominees, and performance-based pay adjustments to the Chair. The Board shall consist of at least three voting members. When evaluating a career appointee's initial appraisal or recommending a career appointee for a performance award, more than half of the members must be career appointees. The names and titles of the PRB members and alternates are as follows:
Membership is effective on the date of this notice.
For the Commission.
Federal Communications Commission.
Notice.
The Commission announces the date and agenda of the next meeting of its Consumer Advisory Committee “Committee”.
The next meeting of the Committee will take place on Friday, November 14, 2008,9 a.m. to 4 p.m., at the Commission's Headquarters Building, Room TW–C305, 445 12th Street, SW., Washington, DC 20554.
Federal Communications Commission, 445 12th Street, NW., Washington, DC 20554.
Scott Marshall, Consumer & Governmental Affairs Bureau, (202) 418–2809 (voice), (202) 418–0179 (TTY), or e-mail
On October 22, 2008, the Commission released Public Notice DA 08–2338, announcing the agenda, date and time of the Committee's next meeting.
At its November 14, 2008 meeting, the Committee will continue its consideration of digital television (DTV) transition issues. The Committee may also consider recommendations regarding broadband/universal service, captioning and relay services, the provision of auditory access to televised programming containing emergency information, as well as other consumer issues within the jurisdiction of the Commission. A limited amount of time on the agenda will be available for oral comments from the public. The Committee is organized under and operates in accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. App. 2 (1988). The meeting is open to the public. Members of the public may address the Committee or may send written comments to: Scott Marshall, Designated Federal Officer of the Committee, at the address indicated on the first page of this document.
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, assistive listening devices, and Braille copies of the agenda and handouts will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need, and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to:
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By order of the Federal Maritime Commission.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission,Washington, DC 20573.
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 November 14, 2008.
Board of Governors of the Federal Reserve System, October 24, 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 November 24, 2008.
In connection with this application, Applicants also have applied to acquire indirect control of Union Acceptance Company LLC, Indianapolis, Indiana, and Coastal Credit LLC, Virginia Beach, Virginia, and thereby indirectly engage in auto lending and financing, pursuant to section 225.28(b)(1) of Regulation Y.
Board of Governors of the Federal Reserve System, October 24, 2008.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than November 14, 2008.
Board of Governors of the Federal Reserve System, October 24, 2008.
In compliance with the requirement of Section 3506(c) (2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed project or to obtain a copy of data collection plans and instruments, call the CDC Reports Clearance Officer on 404–639–5960 or send comments to CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS D–74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
National Vital Statistics Report Forms (0920–0213)—Extension—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
The compilation of national vital statistics dates back to the beginning of the 20th century and has been conducted since 1960 by the Division of Vital Statistics of the National Center for Health Statistics, CDC. The collection of the data is authorized by 42 U.S.C. 242k.
Respondents for the Monthly Vital Statistics Report Form are registration officials in each State and Territory, the District of Columbia, and New York City; in addition, 60 local (county) officials in New Mexico who record marriages occurring and divorces and annulments granted in each county of New Mexico will use this form. This form is designed to collect counts of monthly occurrences of births, deaths, infant deaths, marriages, and divorces immediately following the month of occurrence.
The Annual Marriage and Divorce Statistical Report Form collects final annual counts of marriages and divorces by month for the United States and for each State. The statistical counts requested on this form differ from provisional estimates obtained on the Monthly Vital Statistics Report Form in that they represent complete counts of marriages, divorces, and annulments occurring during the months of the prior year. These final counts are usually available from State or county officials about eight months after the end of the data year. The data are widely used by government, academic, private research, and commercial organizations in tracking changes in trends of family formation and dissolution.
Respondents for the Annual Marriage and Divorce Statistical Report Form are registration officials in each State, the District of Columbia, New York City, Guam, Puerto Rico, Virgin Islands, Northern Marianas, and American Samoa. In addition, counts of marriages will be collected from individual counties in New Mexico, and counts of divorces will be collected from individual counties in California, Colorado, Indiana, Louisiana, New Mexico, and the boroughs of New York City due to a lack of centralized complete collections in these registration areas.
This submission requests approval for three years. There are no costs to respondents other than their time; the data are routinely available in each reporting office as a by-product of ongoing activities.
The Help America Vote Act (HAVA) application to States and Units of Local Government is required by federal statute and regulation. Each State or Unit of Local Government must prepare an application to receive funds under the Help America Vote Act (HAVA), Public Law 107–252, Title II, Subtitle D, Part 2, Sections 261 to 265, Payments to States and Units of Local Government to Assure Access for Individuals with Disabilities (42 U.S.C. 15421–25). The application is provided in writing to the Administration for Children and Families, Administration on Developmental Disabilities.
An annual report is required by Federal statute (the Help America Vote Act (HAVA) of 2002, Public Law 107–252, Section 261, Payments to States and Units of Local Government, 42 U.S.C. 15421). Each State or Unit of Local Government must prepare and submit an annual report at the end of every fiscal year. The report addresses the activities conducted with the funds provided during the year. The information collected from the annual report will be aggregated into an annual profile of how States have utilized the funds and establish best practices for election officials. It will also provide an overview of the State election goals and accomplishments and permit the Administration on Developmental Disabilities to track voting progress to monitor grant activities.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Substantiation for Dietary Supplement Claims Made Under the Federal Food, Drug, and Cosmetic Act” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Jonna Capezzuto, Office of Information Management (HFA–710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301–796–3794.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by December 29, 2008.
Submit electronic comments on the collection of information to
Denver Presley, Jr., Office of Information Management (HFA–710), Food and Drug
Under the PRA (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Center for Veterinary Medicine has written this guidance to address a perceived need for agency guidance in its work with the animal health industry. This guidance describes the procedures that the agency recommends for the review of requests for waiver of in vivo demonstration of bioequivalence for generic soluble powder oral dosage form products and Type A medicated articles.
The Generic Animal Drug and Patent Term Registration Act of 1988 permitted the generic drug manufacturers to copy those pioneer drug products that were no longer subject to patent or other marketing exclusivity protection. The approval for marketing these generic products is based, in part, upon a demonstration of bioequivalence between the generic product and the pioneer product. This guidance clarifies circumstances under which FDA believes the demonstration of bioequivalence required by the statute does not need to be established on the basis of in vivo studies for soluble powder oral dosage form products and Type A medicated articles. The data submitted in support of the waiver request are necessary to validate the waiver decision.
The requirement to establish bioequivalence through in vivo studies (blood level bioequivalence or clinical endpoint bioequivalence) may be waived for soluble powder oral dosage form products or Type A medicated articles in either of two alternative ways. A biowaiver may be granted if it can be shown that the generic soluble powder oral dosage form product or Type A medicated article contains the same active and inactive ingredient(s) and is produced using the same manufacturing processes as the approved comparator product or article. Alternatively, a biowaiver may be granted without direct comparison to the pioneer product's formulation and manufacturing process if it can be shown that the active pharmaceutical ingredient(s) (API) is the same as the pioneer product, is soluble, and that there are no ingredients in the formulation likely to cause adverse pharmacologic effects. For the purpose of evaluating soluble powder oral dosage form products and Type A medicated articles, solubility can be demonstrated in one of two ways: (1) “USP definition” approach, or (2) “Dosage adjusted” approach.
The respondents for this collection of information are pharmaceutical companies manufacturing animal drugs.
FDA estimates the burden for this collection of information as follows:
The sources of the previous data are records of generic drug applications over the past 10 years.
Please note that on January 15, 2008, the FDA Division of Dockets Management Web site transitioned to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. Electronic comments or submissions will be accepted by FDA only through FDMS at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is providing notice of a memorandum of understanding (MOU) between FDA's Center for Biologics Evaluation and Research (CBER) and the National Heart, Lung, and Blood Institute (NHLBI), a part of the National Institutes of Health (NIH). This MOU outlines the terms of collaboration between CBER and NHLBI in areas of mutual concern for protecting and improving the public health. Specifically this MOU provides for the implementation of a plan for promoting better communication and understanding of regulations, policies, and statutory responsibilities, and to serve as a forum for discussion of scientific and clinical topics, questions, and problems that may arise. This MOU also provides the framework for sharing of information.
The agreement became effective September 11, 2008.
Keith Wonnacott, Cellular Therapy Branch (HFM–720), Center for Biologics Evaluation and Research, Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852–1448, 301–827–5102; or John W. Thomas, Division of Blood Diseases and Resources, National Heart, Lung, and Blood Institute MSC 7950, 6701 Rockledge Dr., Rockledge II, rm. 9150, Bethesda, MD 20892–7950, 301–435–0065.
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
Food and Drug Administration, HHS.
Notice.
SUMMARY: The Food and Drug Administration (FDA) is providing notice of a memorandum of understanding (MOU) with the U.S. Army Research Institute of Infectious Diseases (USAMRIID). This MOU identifies the terms of collaboration between FDA and USAMRIID in the area of emergency preparedness. Specifically this MOU provides for the sharing of information and collaborative activities related to biological threat agents and diagnostics to detect such biological threat agents in order to assist both parties in more efficiently preparing for and responding to emergencies in which such diagnostic tests may be used.
The agreement became effective September 5, 2008.
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
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), notice is hereby given of the following meeting:
On November 20, there will be reports of the two task groups and further discussion on Variables and Scenarios for modeling the impact on physician specialty distribution.
Agenda items are subject to change as priorities dictate.
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
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.
Coast Guard, DHS.
Notice of meetings; schedule changes.
On October 1, 2008, The United States Coast Guard published a notice in the
NBSAC will meet on Saturday, November 1, 2008, from 8 a.m. to 11:30 a.m., and on Monday, November 3, 2008, from 8:30 a.m. to 4 p.m. The Boats and Associated Equipment Subcommittee will meet on Saturday, November 1, 2008, from 1 p.m. to 5 p.m. The Prevention through People Subcommittee will meet on Sunday, November 2, 2008, from 8 a.m. to 12 noon. The Recreational Boating Safety Strategic Planning Subcommittee will meet on Sunday, November 2, 2008, from 1:30 p.m. to 5 p.m. These meetings may close early if all business is finished. On Sunday, November 2, 2008, the Recreational Boating Safety Strategic Planning Subcommittee meeting may start earlier if the preceding Subcommittee meeting closes early.
NBSAC and its Subcommittees will meet at the Holiday Inn Arlington, 4610 Fairfax Drive, Arlington, VA 22203. Please send written material, comments, and requests to make oral presentations to Mr. Jeff Ludwig, Executive Secretary of NBSAC, Commandant (CG–54221), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593–0001. This notice is available on the Internet at
Mr. Jeff Ludwig, Executive Secretary of NBSAC, COMDT (CG–54221), 2100 2nd Street, SW., Washington, DC 20593; (202) 372–1061;
Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2. NBSAC and its Subcommittee will meet for the purpose of discussing issues related to recreational boating safety.
A more detailed agenda can be found at:
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces the expansion of the Importer Self-Assessment Program (ISA) to include the Importer Self-Assessment–Product Safety Pilot (ISA–PS). The ISA–PS is a partnership that will be created among CBP, the Consumer Product Safety Commission (CPSC), and importers which will strive to maintain a high level of product safety compliance, and to achieve the goals of the Interagency Working Group on Import Safety by working collaboratively to prevent unsafe imports. The ISA–PS is a voluntary approach to product safety compliance, which will provide recognition and support to participating companies. Application to the ISA–PS is open to all importers who are participants in the ISA. CBP and CPSC staff will designate a limited number of importers from the initial applicants and determine their eligibility for participation in the pilot program. This document contains information on the application process, the benefits, and continued participation requirements.
Cathy Sauceda, Director, Import Safety and Interagency Requirements Division, Office of International Trade, Customs and Border Protection, (202) 863–6556.
U.S. Customs and Border Protection (CBP) is committed to encouraging importers to share the responsibility for compliance with trade laws and regulations. In order to enable interested importers to participate in a program that allows them to assess their own compliance with CBP laws and regulations on a continuing basis, CBP (then known as the U.S. Customs Service, Department of the Treasury) announced the Importer Self-Assessment (ISA) program on June 17, 2002 in a notice in the
Since the ISA program started in 2002, over 172 importers under 760 different Importer of Record numbers have been approved to participate in the program. The compliance measurement program has shown that ISA program participants have continued to hold the highest rate of compliance with major trade laws among major importing groups. In FY 2007, merchandise imported by ISA participants comprised 15% of the total value imported into the United States and the compliance rate for ISA importers was 99.4%.
On July 18, 2007, President George W. Bush issued Executive Order 13439, which established an Interagency Working Group on Import Safety (“Working Group”). The Working Group, a cabinet-level panel of designated members, includes CBP (acting as a designee of the Secretary of Homeland Security) and the Chairman of the U.S. Consumer Product Safety Commission (CPSC). The mission of the Working Group is to identify actions and appropriate steps that can be pursued, within existing resources, to
On September 10, 2007, the Working Group submitted a comprehensive strategic framework entitled
Three organizing principles form the keystones of the Strategic Framework and the Action Plan recommendations: (i) Preventing harm resulting from the importation of unsafe products; (ii) intervening when risks are identified; and, (iii) responding rapidly after harm has occurred. Within each of these organizing principles are cross-cutting building blocks that departments and agencies should use to guide their programs. These “building blocks” include the advancement of a common vision across the federal government, as well as fostering a culture of collaboration among federal departments and agencies.
CBP is responsible for multiple action steps in the Action Plan, including harmonizing government procedures concerning imports, creating an automated system reflecting a “single window” concept, and being an active participant in establishing good importer practices for foreign collaboration, capacity building and developing voluntary certification programs. Taking the lead for a significant amount of the action steps, CBP leads the Working Group in its mission to implement the Action Plan and Strategic Framework by working collaboratively with other government agencies and focusing on import safety issues.
The Working Group is comprised of multiple government agencies, including CPSC. CBP and CPSC have a strong history of partnership in combating unsafe imports, and the two agencies have worked diligently on several significant product recalls including those on lead in toys, cribs, and children's sleepwear. This collaboration has strengthened as both agencies have worked together in the Working Group to implement the Action Plan and the Strategic Framework. In November of 2007, CBP officials worked closely with CPSC officials to formulate a response to the recall of the toy Aquadots after it was discovered that some of the imported toys contained a toxic chemical that resulted in the illness and hospitalization of some children who ingested the toys. The two agencies devised a plan to seize and recover shipments of Aquadots bound for the U.S. or that were already in the U.S. and still subject to redelivery, and thereby successfully prevented the unsafe toys from further distribution.
Currently, to more precisely target consumer products that present a safety risk, CPSC staff and CBP are collaborating on action steps to further improve import safety. CBP and CPSC staff are working collectively with the trade community in the development of a trilateral partnership to facilitate the trade of safe products. Since the development of the ISA program, CBP and CPSC staff have worked with the Departmental Advisory Committee on Commercial Operations of Customs and Border Protection and Related Homeland Security Functions (COAC) to expand the ISA program to include a product safety component, and thereby extend the ISA program to include compliance with other agency requirements.
In order to further the goals of the Working Group's Strategic Framework and Action Plan, this document announces the expansion of the ISA to include the Importer Self-Assessment-Product Safety Pilot (ISA–PS). The ISA–PS is envisioned to be a partnership among CBP, CPSC, and importers to maintain a high level of product safety compliance, and to thereby achieve the objective of the Strategic Framework and Action Plan, that is, working collaboratively to prevent unsafe imports. The ISA–PS is a voluntary approach to product safety compliance, which provides recognition and support to participating companies. CBP and CPSC staff have developed a list of best practices to ensure compliance with CPSC's current regulations and will be working through this program to adapt those best practices to meet CPSC's new statutory scheme. Within the realm of their respective authorities, CBP and CPSC will verify that companies have adequate controls and processes in place to ensure product safety at all points in the product life-cycle of imported products and to comply with these mandatory standards. CPSC staff and CBP have worked to develop CPSC-based benefits to encourage participation in this expanded pilot program. Acceptance into the program is by mutual agreement of CPSC and CBP.
The Importer Self-Assessment-Product Safety Pilot (ISA–PS) is envisioned to be a partnership among CBP, the Consumer Product Safety Commission (CPSC) and importers to maintain a high level of product safety compliance. ISA–PS is a voluntary approach to product safety compliance, which provides recognition and support to participating companies.
In order to participate in ISA–PS, an importer must:
1. Be an active member in ISA and comply with all ISA requirements and obligations.
2. Complete an ISA–PS/CPSC Questionnaire and sign an ISA–PS/CPSC Addendum.
3. Agree to comply with all laws and regulations administered by CBP, as well as the CPSC including, but not limited to: the Consumer Product Safety Improvement Act of 2008, Public Law 110–314, 122 Stat. 3016 (August 14, 2008), the Consumer Product Safety Act (codified at 15 U.S.C. 2051–2089), the Federal Hazardous Substances Act (codified at 15 U.S.C. 1261–1278), the Flammable Fabrics Act (codified at 15 U.S.C. 1191–1204), the Poison Prevention Packaging Act (codified at 15 U.S.C. 1471–1476), the Refrigerator Safety Act (codified at 15 U.S.C. 1211–1214), the Virginia Graeme Baker Pool and Spa Safety Act (codified at 15 U.S.C. 8001–8008), and the Children's Gasoline Burn Prevention Act, Public Law 110–278, 122 Stat. 2602 (July 17, 2008).
4. Maintain an internal control system that ensures the integrity of product safety.
5. Notify CBP of any major organizational changes that may impact the importer's product safety controls.
6. Submit an annual written notification to CBP that sets forth the importer's ISA–PS point of contact and acknowledges that the importer continues to meet the requirements of ISA–PS.
Interested applicants (importers that are already active members of ISA) may send an e-mail requesting an application to
After the applicant has submitted the ISA–PS/CPSC Questionnaire and ISA–PS/CPSC Addendum, CBP and CPSC staff will review the applicant's submission. For a limited number of applicants, the review will include a CPSC risk assessment to determine the applicant's readiness to assume responsibilities for self-assessment. The risk assessment will include an examination of the applicant as identified by the Importer of Record (IOR) number(s) listed on the ISA–PS/CPSC Questionnaire and its scope will include the laws and regulations administered by CPSC requirements set forth above (in ISA–PS Participation Requirements, Item 3). CBP and CPSC will perform a formal domestic site visit with the importer. At the discretion of CBP and CPSC it may also be necessary to perform a formal visit with the applicant at a foreign facility. The purpose of these site visits is to determine if the applicant is ready to assume the responsibilities of self-assessment and to equip CBP and CPSC with the knowledge of the importers internal control procedures as appropriate. If CBP and CPSC determine that the applicant is not ready to assume the responsibilities of self-assessment, CBP and CPSC staff will continue to work with the applicant to strengthen their product safety program. If CBP and CPSC staff determine that the applicant is ready to assume all the responsibilities of self-assessment, they will sign the ISA–PS/CPSC Addendum and return a copy to the importer. CBP and CPSC staff reserve the right, in their discretion, to approve or disapprove an application. Further, in selecting applicants for participation in ISA–PS, CBP and CPSC staff reserve the right to establish priorities for the processing and approval of applications.
In addition to the benefits received as a participant in ISA, once accepted into the ISA–PS, the participant also becomes eligible for the following benefits:
1. CPSC will provide the participant with a product-specific CPSC point of contact who can assist in providing National Electronic Injury Surveillance System (NEISS) Product Codes for entry lines.
2. CPSC will provide access to the participant with special training concerning product safety compliance, internal controls, and CPSC audit trails.
3. CPSC will allow the participant the opportunity to apply for external participation coverage of multiple business units (multiple IOR numbers) identified in the ISA–PS/CPSC Addendum.
4. CPSC will consider expansion of benefits to all products of approved participants if the entry line(s) contains all the applicable NEISS product code(s).
5. CPSC will reduce product safety tests on goods imported by ISA–PS participants.
6. CPSC laboratories will grant priority “front of the line testing” to ISA–PS participants when product safety testing is conducted.
7. CPSC may allow products to be destroyed by the ISA–PS participant in lieu of requesting redelivery to CBP of the product.
8. CPSC will acknowledge the participation of ISA–PS in CPSC's “Fast-Track Product Recall Program.”
9. Additional benefits tailored to specific industry needs may later become available.
Additionally, the ISA–PS participant will enjoy greater business certainty because a reliable system of internal controls ensures compliant product safety transactions.
Each ISA–PS participant must remain an active member in ISA and comply with all ISA requirements and obligations, available at
If a participant fails to remain an active member in ISA or fails to meet the requirements of the ISA–PS/CPSC Addendum, or is determined to have violated a law or regulation administered by CBP or the CPSC, the participant may be subject to penalties, liquidated damages, and/or removal from the ISA removal from the ISA–PS. If CBP and CPSC staff believe that there is a basis for removal of an ISA–PS participant, a written notice proposing removal with a description of the facts or conduct warranting removal, will be provided to such participant. The participant will be offered the opportunity to respond to the proposed removal notice within 30 days of the date of the notice. CBP and CPSC will issue a final written decision on the proposed removal within 30 days of the receipt of the response to the proposed removal notice, if one was timely received. In the case of a public health interest and/or safety concern, a participant may be removed immediately from the ISA–PS. The participant will be given an opportunity to respond within 30 days to the notice providing for immediate removal.
CBP and CPSC staff intend to review the ISA–PS pilot two years after its effective date to measure its effects and achievements, and recommend to CBP and the Commission whether ISA–PS shall become a permanent program.
Customs and Border Protection, Department of Homeland Security.
General notice.
This notice advises the public of the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties. For the calendar quarter beginning October 1, 2008, the interest rates for overpayments will be 5 percent for corporations and 6 percent for non-corporations, and the interest rate for underpayments will be 6 percent. This notice is published for the convenience of the importing public and Customs and Border Protection personnel.
Ron Wyman, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 614–4516.
Pursuant to 19 U.S.C. 1505 and Treasury Decision 85–93, published in the
The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.
In Revenue Ruling 2008–47, the IRS determined the rates of interest for the calendar quarter beginning October 1, 2008, and ending on December 31, 2008. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (3%) plus three percentage points (3%) for a total of six percent (6%). For corporate overpayments, the rate is the Federal short-term rate (3%) plus two percentage points (2%) for a total of five percent (5%). For overpayments made by non-corporations, the rate is the Federal short-term rate (3%) plus three percentage points (3%) for a total of six percent (6%). These interest rates are subject to change for the calendar quarter beginning January 1, 2009, and ending March 31, 2009.
For the convenience of the importing public and Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from before July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The information collected determines if the Department will guarantee loans and mortgage insurance made by private lenders to Native American borrowers on restricted land.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2577–0200) and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–6974.
Lillian Deitzer, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail Lillian Deitzer at
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affecting agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Information collected determines if the Department will guarantee loans and mortgage insurance made by private lenders to Native American borrowers on restricted land.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
We invite the public to comment on the following applications to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before November 28, 2008.
Written data or comments should be submitted to the U.S. Fish and Wildlife Service, Endangered Species Program Manager, Region 8, 2800 Cottage Way, Room W–2606, Sacramento, CA, 95825 (telephone: 916–414–6464; fax: 916–414–6486). Please refer to the respective permit number for each application when submitting comments. All comments received, including names and addresses, will
Daniel Marquez, Fish and Wildlife Biologist, see
The following applicants have applied for scientific research permits to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act (16 U.S.C. 1531
The applicant requests a permit to take (capture, collect, and kill) the Conservancy fairy shrimp (
The applicant requests a permit to take (survey and set up remote camera systems) the Peninsular bighorn sheep (
The applicant requests a permit to take (capture, collect, and kill) the vernal pool tadpole shrimp (
The applicant requests a permit to take (capture, collect, and kill) the Conservancy fairy shrimp (
The applicant requests a permit to take (capture, collect, and kill) the Conservancy fairy shrimp (
The applicant requests a permit to remove/remove to possession the
The applicant requests an amendment to take (play taped vocalizations) the lease Bell's vireo (
The applicant requests an amendment to take (locate/monitor nests) the California clapper rail (
We solicit public review and comment on each of these recovery permit applications. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the address listed in the
Fish and Wildlife Service, Interior.
Notice of availability: final comprehensive conservation plan and finding of no significant impact.
We, the Fish and Wildlife Service (Service), announce the availability of our final comprehensive conservation plan (CCP) and finding of no significant impact (FONSI) for Waccamaw National Wildlife Refuge. In the final CCP, we describe how we will manage this refuge for the next 15 years.
A copy of the CCP may be obtained by writing to: Waccamaw National Wildlife Refuge, 1601 North Fraser Street, Georgetown, SC 29440. The plan may also be accessed and downloaded from the Service's Web site:
Mr. Craig Sasser, Refuge Manager, Waccamaw National Wildlife Refuge; Telephone: 843/527–8069; Fax: 843/527–8494.
With this notice, we finalize the CCP process for Waccamaw National Wildlife Refuge. We started this process through a notice in the
Waccamaw National Wildlife Refuge is currently 18,251 acres in size (within an approved acquisition boundary of 54,000 acres), and was established in 1997 for the following purposes: (1) To protect and manage diverse habitat components within an important coastal river ecosystem for the benefit of threatened and endangered species, freshwater and anadromous fish, migratory birds, and forest wildlife, including a wide array of plants and animals associated with bottomland hardwood habitats; and (2) to provide compatible wildlife-dependent recreational activities, including hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation.
The refuge acquisition boundary includes large sections of the Waccamaw and Great Pee Dee Rivers and a small section of the Little Pee Dee River. The wetland diversity of this refuge is what distinguishes it from most others found along the east coast. Wetland habitats range from historic, broken, and actively managed tidal rice fields, to black water and alluvial floodplain forested wetlands. These tidal freshwater wetlands are some of the most diverse freshwater wetland systems found in North America and they offer many important habitats for migratory birds, fish, and resident wildlife.
Over 400 species of animals are supported by the variety of habitats in the refuge acquisition area, including several endangered species. Birds, such as the swallow-tailed kite, osprey, wood stork, white ibis, prothonotary warbler, and many species of waterfowl, can be observed on a seasonal basis, while mammals, such as the American black bear, frequent the refuge's forests year-round. Notably, the refuge acquisition area supports the highest density of nesting swallow-tailed kites in South Carolina and is the northernmost documented nesting area for this raptor within its range.
Additionally, the refuge's wetlands play a critical role in the filtration and storm water retention of the primary drinking water resource for the greater Grand Strand region.
Popular recreation uses of the refuge include hunting and both recreational and commercial fishing. Wildlife viewing and photography programs, as well as environmental education and interpretation, are also being developed on the refuge, especially in conjunction with a visitor center now under construction.
We announce our decision and the availability of the final CCP and FONSI for Waccamaw National Wildlife Refuge in accordance with the National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft comprehensive conservation plan and environmental assessment (Draft CCP/EA).
The CCP will guide us in managing and administering Waccamaw National Wildlife Refuge for the next 15 years. Alternative C, as we described in the final CCP, is the foundation for the CCP.
The compatibility determinations for (1) Hunting; (2) fishing; (3) wildlife observation and photography; (4) environmental education and interpretation; (5) bicycling; (6) commercial services; (7) commercial fishing; (8) research; (9) camping; (10) rights-of-way; and (11) forest management—commercial timber harvest are also available within the final CCP.
The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd–668ee) (Improvement Act), which amended the National Wildlife Refuge System Administration Act of 1966, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Improvement Act.
Approximately 200 copies of the Draft CCP/EA were made available for a 30-day public review period as announced in the
After considering the comments we received, we have selected Alternative D for implementation. This alternative is judged to be the most effective management action for meeting the purposes of the refuge by optimizing habitat management and visitor services throughout the refuge. The Service would aim to improve wintering waterfowl habitat on approximately 600 acres on Unit 1 by restoring hydrology. We would also continue to conduct informal surveys on swallow-tailed kites and Swainson's warblers on an occasional basis. Management of black bears would be stepped up, and would include annual surveys and enlisting public participation in gathering, recording, and compiling sightings.
Management of threatened and endangered species would involve restoring the hydrology on Unit 1 to enhance the existing wood stork rookery, restoring wood stork feeding areas on Unit 3, and red-cockaded woodpecker nesting and foraging habitat on Unit 2. Recreational use of the refuge would continue. This alternative would expand on hunting opportunities for deer and hog by considering a hunt by mobility-impaired individuals. It would potentially include a youth waterfowl hunt on refuge management lands. Over the lifetime of the CCP, this alternative would call for reducing deer herd density to improve herd health and to improve habitat quality for other species.
This alternative would identify the 4,600-acre Bull Island as a proposed Wilderness Study Area. The Service would maintain its wilderness
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105–57.
This document was received in the Office of the Federal Register on October 24, 2008.
Fish and Wildlife Service, Interior.
Notice of availability: Final comprehensive conservation plan and finding of no significant impact.
We, the Fish and Wildlife Service (Service), announce the availability of our final comprehensive conservation plan (CCP) and finding of no significant impact (FONSI) for Pee Dee National Wildlife Refuge. In the final CCP, we describe how we will manage this refuge for the next 15 years.
A copy of the CCP may be obtained by writing to: Jeffrey Bricken, Refuge Manager, Pee Dee National Wildlife Refuge, 5770 U.S. Highway 52 North, Wadesboro, NC 28170. The CCP may also be accessed and downloaded from the Service's Internet Site:
Jeffrey Bricken; telephone: 704/694–4424.
With this notice, we finalize the CCP process for Pee Dee National Wildlife Refuge. We started this process through a notice of intent in the
Established in 1963, Pee Dee National Wildlife Refuge is located approximately 48 miles east of Charlotte, North Carolina, in Anson and Richmond Counties. The 8,433-acre refuge includes a diversity of habitats consisting of bottomland hardwoods, upland pine forests, croplands, open fields, moist-soil units, and mixed-pine hardwoods. These areas support a variety of wildlife and plant species, including waterfowl and other migratory birds, as well as federal- and state-listed species. Pee Dee National Wildlife Refuge straddles several miles of the Pee Dee River, and contains numerous creeks, lakes, and ponds. In addition, the refuge protects historical and archaeological sites.
We announce our decision and the availability of the final CCP and FONSI for Pee Dee National Wildlife Refuge in accordance with National Environmental Policy Act (NEPA) (40 CFR 1506.6(b)) requirements. We completed a thorough analysis of impacts on the human environment, which we included in the draft comprehensive conservation plan and environmental assessment (Draft CCP/EA).
The CCP will guide us in managing and administering Pee Dee National Wildlife Refuge for the next 15 years. Alternative C, as we described in the final CCP, is the foundation for the CCP.
The compatibility determinations for (1) boating; (2) deer and feral hog hunting; (3) turkey hunting; (4) small game hunting; (5) fishing; (6) wildlife observation and photography; (7) environmental education and interpretation; (8) bicycling and jogging; (9) horseback riding; (10) forest management/timber harvest; and (11) cooperative farming are also available in the CCP.
The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd–668ee) (Improvement Act), which amended the National Wildlife Refuge System Administration Act of 1966, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Improvement Act.
We solicited comments on the Draft CCP/EA for a 30-day period as announced in the
The Draft CCP/EA identified and evaluated three alternatives for managing the refuge. After considering the comments we received and based on the professional judgment of the planning team, we have selected Alternative C for implementation. Under this alternative, refuge management will focus on maintaining biodiversity, restoring habitats, improving conditions for threatened and endangered species, and increasing public use opportunities.
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105–57.
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM) has determined that public lands in Tooele County, Utah have been examined and found suitable for classification for conveyance to the City of Wendover, Utah under the provisions of the Recreation and Public Purposes Act, as amended (43 U.S.C. 869).
Comments regarding the proposed conveyance must be received by the BLM on or before December 15, 2008. Comments should reference the serial number UTU–66588–02.
Comments may be submitted to the Bureau of Land Management, Salt Lake City Field Office, 2370 South 2300 West, Salt Lake City, UT 84119. 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.
David Watson, Realty Specialist, BLM Salt Lake Field Office, (801) 977–4368,
The City of Wendover has filed an application under the provisions of the R&PP Act of June 14, 1926, as amended (43 U.S.C. 869) to purchase the public land described above for a city cemetery, which they have managed under a R&PP Lease for the past 18 years. The R&PP Act provides for purchase of public lands by units of local government for public purposes such as cemeteries at one half their fair market value. The City of Wendover proposes to continue to use the following described public land for a city cemetery.
Contains approximately 10 acres in Tooele County, Utah.
The land is not needed for any Federal purposes. Conveyance is consistent with current BLM land use planning, The Pony Express Resource Management Plan—1990, and would be in the public interest.
The patent, when issued, will be subject to the following terms, conditions and reservations:
1. Provisions of the Recreation and Public Purposes Act and all applicable regulations of the Secretary of the Interior.
2. A rights-of-way for ditches or canals constructed by authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
3. All valid existing rights.
4. The United States will reserve all mineral together with the right to prospect for, mine and remove the minerals under applicable laws and such regulations as the Secretary of the Interior may prescribe, including all necessary access and exit rights.
5. The patentee, its successors or assigns, by accepting a patent, agrees to indemnify, defend, and hold harmless the United States, its officers, agents, representatives, and employees (hereinafter “United States”) from any costs, damages, claims, causes of action in connection with the patentee's use, occupancy, or operations on the patented real property. This agreement includes, but is not limited to, acts or omissions of the patentee and its employees, agents, contractors, lessees, or any third party arising out of, or in connection with, the patentee's use, occupancy, or operations on the patented real property which cause or give rise to, in whole or in part: (1) Violations of Federal, State, and local laws and regulations that are now, or may in the future become, applicable to the real property and/or applicable to the use, occupancy, and/or operations thereon; (2) judgments, claims, or demands of any kind assessed against the United States; (3) costs, expenses, or damages of any kind incurred by the United States; (4) releases or threatened releases of solid or hazardous waste(s) and/or hazardous substances(s), pollutant(s), or contaminants(s), and/or petroleum product(s) or derivative(s) of a petroleum product, as defined by Federal or State environmental laws; of, on, into, or under land, property, and other interests of the United States; (5) other activities by which solid or hazardous substance(s) or waste(s), pollutant(s) or contaminant(s), or petroleum product(s) or derivative(s) of a petroleum product as defined by Federal or State environmental laws are generated, stored, used, or otherwise disposed of on the patented real property, and any cleanup response, remedial action, or other actions related in any manner to the said solid or hazardous substance(s) or waste(s) or contaminant(s), or petroleum product(s) or derivative(s) of a petroleum product as defined by Federal or State laws. Patentee shall stipulate that it will be solely responsible for compliance with all applicable Federal, State, and local environmental laws and regulatory provisions, throughout the life of the facility, including any closure and/or post-closure requirements that may be imposed with respect to any physical plant and/or facility upon the real property under any Federal, State, or local environmental laws or regulatory provisions. In the case of a patent being issued, this covenant shall be construed as running with the patented real property and may be enforced by the United States in a court of competent jurisdiction.
Upon publication of this notice in the
The State Director will review any adverse comments. In the absence of any adverse comments, the classification will become effective 60 days from the date of publication in the
Bureau of Land Management, Interior.
Notice of Realty Action.
The Bureau of Land Management (BLM) has determined that certain public lands located in Kane County, Utah, are suitable for classification for conveyance to the Western Kane County Special Services District under the authority of the Recreation and Public Purposes (R&PP) Act, June 14, 1926, as amended (43 U.S.C. 869).
Comments regarding the proposed conveyance must be received by the BLM on or before December 15, 2008. Only written comments will be accepted.
Detailed information concerning this action, including but not limited to documentation related to compliance with applicable environmental and cultural resource laws, is available for review at the BLM Kanab Field Office. Address all written comments concerning this notice to Harry Barber, Kanab Field Office Manager, 318 North 100 East, Kanab, Utah 84741. 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.
Hugh Wolfe, Realty Specialist, BLM Kanab Field Office, (435) 644–4608,
The following described public land in Kane County, Utah, has been examined and found suitable for conveyance to the Western Kane County Special Services District under the provisions of the R&PP Act, as amended:
The area described above contains approximately 26.25 acres in Kane County, Utah.
In 1989, Western Kane County Special Services District received a patent from the BLM for 10 acres of land for the purpose of developing a landfill in the western portion of Kane County. This landfill was subsequently developed and serves as the repository for solid waste in this area. Since that time, there has been tremendous growth in the area (mainly from development of and visitation to Cedar Mountain and surrounding areas) resulting in increased pressure and use of the existing landfill. This increased pressure and use is causing the original 10-acre landfill site to be used up much more rapidly than previously anticipated. With the explosive population growth in the Las Vegas, Nevada and St. George, Utah areas (where much of the Cedar Mountain development and visitation comes from), the need for additional solid waste disposal will only increase as well. The landfill site would serve important public objectives, including efficient and orderly disposal of solid waste with a minimum solid waste transportation distance for the majority of Long Valley and Cedar Mountain residents.
The proposed conveyance is consistent with the BLM Zion Management Framework Plan approved April 22, 1981, and amended March 10, 1998 (MFP). This 1998 Land Tenure Adjustment Amendment allows the BLM to consider land tenure adjustments (including R&PP leases/patents) if the action meets one or more criteria. One of these criteria was that the action “is in the public interest and accommodates the needs of state, local, or private entities, including needs for the economy, community growth and expansion and [is] in accordance with other land use goals and objectives and MFP planning decisions.” This action is consistent with the goals, objectives, and decisions of the Zion MFP, and would not conflict with other decisions throughout the plan. The proposed action is therefore in conformance with the Zion MFP and would serve important public objectives which cannot be achieved prudently or feasibly elsewhere.
The land contains no other known public values. The subject parcel has not been identified for transfer to the State or any other local government or nonprofit organization.
The patent, when issued, will be subject to the following terms, conditions, and reservations:
1. Provisions of the Recreation and Public Purposes Act and all applicable regulations of the Secretary of the Interior. In particular, statutory provisions governing the conveyance of new disposal sites are to be found at 43 U.S.C. 869–2(b), regulatory provisions at 43 CFR 2743.2 and 2343.2–1.
2. A right of way for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
3. All valid existing rights.
4. The United States will reserve all minerals together with the right to prospect for, mine, and remove the minerals under applicable laws and such regulations as the Secretary of the Interior may prescribe, including all necessary access and exit rights.
5. These parcels are subject to the requirements of section 120(h) of the Comprehensive Environmental Response, Compensation and Liabilities Act, 42 U.S.C. 9620(h) (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1988, Sat. 1670.
6. The patentee, its successors or assigns, by accepting a patent, agrees to indemnify, defend, and hold harmless the United States, its officers, agents, representatives, and employees (hereinafter “United States”) from any costs, damages, claims, causes of action in connection with the patentee's use, occupancy, or operations on the patented real property. This agreement includes, but is not limited to, acts or omissions of the patentee and its employees, agents, contractors, lessees, or any third party arising out of, or in connection with, the patentee's use, occupancy, or operations on the patented real property which cause or give rise to, in whole or in part: (1) Violations of Federal, State, and local laws and regulations that are now, or may in the future become, applicable to the real property and/or applicable to the use, occupancy, and/or operations thereon; (2) judgments, claims, or demands of any kind assessed against the United States; (3) costs, expenses, or damages of any kind incurred by the United States; (4) releases or threatened releases of solid or hazardous waste(s) and/or hazardous substances(s), pollutant(s), or contaminants(s), and/or petroleum product(s) or derivative(s) of a petroleum product, as defined by Federal or State environmental laws; of, on, into, or under land, property, and other interests of the United States; (5) other activities by which solid or hazardous substance(s) or waste(s), pollutant(s) or contaminant(s), or petroleum product(s) or derivative(s) of a petroleum product as defined by Federal or State environmental laws are generated, stored, used, or otherwise disposed of on the patented real property, and any cleanup response, remedial action, or other actions related in any manner to the said solid or hazardous substance(s) or waste(s) or contaminant(s), or petroleum product(s) or derivative(s) of a petroleum product as defined by Federal or State laws. Patentee shall stipulate that it will be solely responsible for compliance with all applicable Federal, State, and local environmental laws and regulatory provisions, throughout the life of the facility, including any closure and/or post-closure requirements that may be imposed with respect to any physical plant and or facility upon the real property under any Federal, State, or
Additional detailed information concerning this Notice of Realty Action, including environmental records, is available for review at the BLM Kanab Field Office, at the above address. Office hours are 7:45 a.m. to 4:30 p.m., Monday through Friday except holidays.
Upon publication of this notice in the
(1) Whether the land is physically suited for the proposal;
(2) Whether the use will maximize the future use or uses of the land;
(3) Whether the use is consistent with local planning and zoning; and
(4) If the use is consistent with State and Federal programs.
The State Director will review any adverse comments. In the event the public does not submit adverse comments, the classification will become 60 days from the date of publication in the
National Park Service, Interior.
Notice; correction.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the NAGPRA coordinator, Intermountain Region.
This notice corrects the number of sacred objects affiliated with the Pueblo of Santa Ana, New Mexico in a Notice of Intent to Repatriate published on July 23, 2008, in the
In the
In 1994, the National Park Service assisted the Federal Bureau of Investigation and the United States Fish and Wildlife Service with the investigation of a Migratory Bird Treaty Act violation. The evidence included a collection of Native American objects confiscated from the East-West Trading Post in Santa Fe, NM. Preliminary subject matter expert review of the collection indicated that the objects were historically significant and potentially subject to NAGPRA. The collection was accessioned in 2002 into the Southwest Regional Office collections, now called the Intermountain Region Office. The cultural item covered in this notice is one bundle with eagle feathers.
Following adjudication of the case, a detailed assessment of the object was made by Intermountain Region (IMR) NAGPRA program staff in close collaboration with the IMR Museum Services program staff and in consultation with representatives of potentially affiliated tribes. During consultation, representatives of the Pueblo of Santa Ana, New Mexico, identified the cultural item as a specific ceremonial object needed by traditional Pueblo of Santa Ana religious leaders for the practice of a traditional Native American religion by their present-day adherents. Oral tradition evidence presented by representatives of the Pueblo of Santa Ana, New Mexico, and the written repatriation request received by the Intermountain Region further articulated the ceremonial significance of the cultural item to the Pueblo of Santa Ana, New Mexico. Based on anthropological information, court case documentation, oral tradition, museum records, consultation evidence, and expert opinion, there is a cultural affiliation between the Pueblo of Santa Ana, New Mexico, and the sacred object.
Officials of the Intermountain Region have determined that, pursuant to 25 U.S.C. 3001(3)(C), the cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. Officials of the Intermountain Region also have determined that, pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the sacred object and the Pueblo of Santa Ana, New Mexico. Repatriation of the sacred object to the Pueblo of Santa Ana, New Mexico, occurred after the 30 day comment period expired for the original July 23, 2008, Notice of Intent to Repatriate.
The Intermountain Region is responsible for notifying the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Hopi Tribe of Arizona; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (formerly the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Santo Domingo, New Mexico; Pueblo of Taos,
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C 3003, of the completion of an inventory of human remains and associated funerary objects in the control of the U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the possession of the New York State Museum, Albany, NY. The human remains and associated funerary objects were removed from Dukes County, MA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by New York State Museum professional staff in consultation with representatives of the Wampanoag Tribe of Gay Head (Acquinnah) of Massachusetts.
In 1966, human remains representing a minimum of two individuals were recovered from the Howland 2 Site, Dukes County, Martha's Vineyard Island, MA, during an archeological survey conducted by Frank Schambach, New York State Museum staff. No known individuals were identified. The nine associated funerary objects are eight wrought iron nails with wood adhering and a fragment of deer bone scapula.
The Howland 2 Site is located on Shotnine Hill overlooking Squibnocket Pond within the historic boundaries of the community of Gay Head. The human remains were found in two separate locations on the same site. Wrought iron nails associated with one of the individuals dates the burial to post-European contact, dated to circa 18th–19th centuries. Although the only funerary object found with the second individual consisted of a fragment of animal bone, the depth of the burial, which was over 4 1/2 feet deep, and its proximity to the other individual of historic age, indicates that these human remains may also date to a post-contact time period.
Historic records indicate that the Wampanoag have maintained a continuous presence on Martha's Vineyard, despite colonization of the island by Euroamericans in A.D. 1641. In 1711, Gay Head was established as a reservation for the Wampanoag Gay Head Indians by the Society for the Propogation of the Gospel in New England. In 1714, the community was closed off to the public by a ditch and gate enclosure, along what is now the boundary with Chilmark. The Howland 2 Site is located within this boundary. Its location within the historic boundary of Gay Head suggests that the site was used for burial by residents of the Wampanoag community, rather than by Euroamericans.
Historic information indicates that the area of the Howland 2 Site has been part of Wampanoag-use lands since 1711. Archeological evidence indicates that the burials most likely date to a time subsequent to the establishment of the Gay Head community for the Wampanoag Indians by the Society for the Propagation of the Gospel in New England. Based on this historical and archeological evidence, officials of the New York State Museum have determined that the human remains and funerary objects are culturally affiliated with the Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts. Officials of the Bureau of Indian Affairs concur with the determinations in this notice.
Officials of the Bureau of Indian Affairs and New York State Museum have determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains described above represent the physical remains of two individuals of Native American ancestry. Officials of the Bureau of Indian Affairs and New York State Museum have also determined that, pursuant to 25 U.S.C. 3001 (3)(A), the nine objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony. Lastly, officials of the Bureau of Indian Affairs and New York State Museum have determined that, pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Wampanpoag Tribe of Gay Head (Aquinnah) of Massachusetts.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Lisa M. Anderson, NAGPRA Coordinator, New York State Museum, 3049 CEC, Albany, NY 12230, telephone (518) 486–2020, before November 28, 2008. Repatriation of the human remains and associated funerary objects to the Wampanpoag Tribe of Gay Head (Aquinnah) of Massachusetts may proceed after that date if no additional claimants come forward.
The New York State Museum is responsible for notifying the Wampanpoag Tribe of Gay Head (Aquinnah) of Massachusetts that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the U.S. Department of the Interior, U.S. Fish and Wildlife Service, Region 7, Anchorage, AK. The human remains were removed from Carlisle Island in the Islands of the Four Mountains area of the Aleutian Islands chain in Alaska.
This notice is published as part of the National Park Service's administrative
A detailed assessment of the human remains was made by U.S. Fish and Wildlife Service, Region 7 professional staff with assistance from the Alaska State Office of History and Archaeology and University of Alaska, Anchorage, in consultation with representatives of the Aleut Corporation and Unangan Repatriation Commission, a non-federally recognized Native Alaskan group.
In 1949, human remains representing a minimum of one individual were removed from Carlisle Island, in the Islands of the Four Mountains area of the Aleutian Islands chain in Alaska, during an expedition by William S. Laughlin, a physical anthropologist. No known individual was identified. No associated funerary objects are present.
There are no radiocarbon dates available for the human remains. All known dated cave burials from the Aleutians are younger than 2,000 years old (Black 1982, pg 24; Black 2003, pg 36; Hayes 2002). The burial context and physical traits of the human remains are consistent with those observed for pre-contact Aleut populations. Human remains and associated grave goods from sites in the Aleutians that were collected by Dr. Laughlin were sent to the University of Connecticut. In 2002, most of the Aleutian Island human remains were sent to The Museum of the Aleutians in Unalaska, AK.
Analysis, including cranio-metric analysis, by the University of Alaska, Anchorage and with the assistance of the Alaska State Office of History and Archaeology, were done on the human remains. Radiocarbon dates were not obtained by the University of Alaska Anchorage or the State Office of History and Archaeology. Skeletal morphology of present-day Aleut populations is similar to that of prehistoric Aleut populations and demonstrates biological affiliation between present-day Aleut groups and prehistoric populations in the Aleutian Islands.
Cultural affiliation between the prehistoric population on Carlisle Island and the Chaluka Corporation and Native Village of Nikolski is demonstrated by recent historical records. In 1741, Russian explorers made contact with the people of the Islands of the Four Mountains. These people and their culture are not well known, but were a distinct variant of the Aleutian culture. In the late 1700s, with Russian assistance, the Umnak Aleuts waged war on the people of the Islands of the Four Mountains. Survivors of the conflict were removed to villages on Umnak Island and absorbed into the population and the population of the Islands of the Four Mountains was “no more” by 1790 (Black 1982, pg 20). Based on scientific studies, aboriginal occupation, historical records, and burial context, it is reasonably believed that the descendants of the people of the Islands of the Four Mountains, including Carlisle Island, are members of the present-day Chaluka Corporation and Native Village of Nikolski, which is represented by the Nikolski IRA Council.
Officials of the U.S. Fish and Wildlife Service, Region 7 have determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains described above represent the physical remains of one individual of Native American ancestry. Officials of the U.S. Fish and Wildlife Service, Region 7 also have determined that, pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Chaluka Corporation and Native Village of Nikolski.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Debra Corbett, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503, telephone (907) 786–3399, before November 28, 2008. Repatriation of the human remains to the Chaluka Corporation and Native Village of Nikolski may proceed after that date if no additional claimants come forward.
U.S. Fish and Wildlife Service, Region 7 is responsible for notifying the Chaluka Corporation Native Village of Nikolski, and Nikolski IRA Council that this notice has been published.
National Park Service, Interior.
Notice.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the control of the U.S. Department of the Interior, Bureau of Indian Affairs, Washington, DC, and in the possession of the Northwest Museum of Arts & Culture, Spokane, WA. The human remains were removed from the Spokane Indian Reservation which is predominantly situated in Stevens County, WA, with an exception of a small plot of land and a section of the Spokane River that are located in Lincoln County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Northwest Museum of Arts & Culture professional staff, on behalf of the U.S. Department of the Interior, Bureau of Indian Affairs, in consultation with representatives of the Spokane Tribe of the Spokane Reservation, Washington.
Around the early 1900s, human remains representing a minimum of two individuals were removed from an unknown location on the Spokane Indian Reservation in Stevens County, WA, probably by Mr. Daniel Dwight, a well-known collector of Spokane Indian relics. The human remains were in Mr. Dwight's possession until his passing in 1982 when many of the Indian artifacts he amassed over the years were donated to the Museum of Native American Culture, Spokane, WA (Accn. Number 1982.37). The Dwight Collection was stored by the Museum of Native American Culture until the museum's closure in 1991. Subsequently, the majority of the Museum of Native American Culture's collections was taken over by the Cheney Cowles Museum, later named the Northwest
Based on museum records, as well as consultation with the late Robert Sherwood, a cultural representative of the Spokane Tribe, the human remains were most likely removed during the early 1900s from the Spokane Reservation. The human remains include two human skulls and mandibles. Though un-numbered, these human remains are reasonable believed to be a part of a group of bones listed in the Daniel Dwight donation of 1982. The collection records include crania metatarsal, and vertebra bone fragments, and are consistent with the inventory of human remains listed above.
Based on provenience, museum records, consultation, and the donor's collection history, the officials of the Bureau of Indian Affairs and Northwest Museum of Arts & Cultural reasonably believe that the human remains are culturally affiliated with the Spokane Tribe of the Spokane Reservation, Washington.
Officials of the Bureau of Indian Affairs and Northwest Museum of Arts & Culture have determined that, pursuant to 25 U.S.C. 3001 (9–10), the human remains described above represent the physical remains of two individuals of Native American ancestry. Officials of the Bureau of Indian Affairs and Northwest Museum of Arts & Culture also have determined that, pursuant to 25 U.S.C. 3001 (2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Spokane Tribe of the Spokane Reservation, Washington.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Mr. Michael Holloman, Museum of Arts & Culture, 2316 West First Avenue, Spokane, WA 99201–5906, telephone (509) 363–5337, before November 28, 2008 Repatriation of the human remains to the Spokane Tribe of the Spokane Reservation, Washington may proceed after that date if no additional claimants come forward.
The Northwest Museum of Arts & Culture is responsible for notifying the Spokane Tribe of the Spokane Reservation, Washington that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 19) issued by the presiding administrative law judge (“ALJ”) terminating the investigation based on a settlement agreement.
Mark B. Rees, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–3116. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
On March 27, 2008, the Commission instituted this investigation based on the complaint, as supplemented, of CryoCor, Inc. of San Diego, California (“CryoCor”) and AMS Research Corporation of Minnetonka, Minnesota (“AMS”). The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain catheters, consoles, and other apparatus for cryosurgery, and components thereof, that infringe certain claims of U.S. Patent Nos. 6,471,694; 6,572,610; and RE 40,049. The respondent is CryoCath Technologies, Inc. of Quebec, Canada (“CryoCath”). 73 FR 17998 (Apr. 2, 2008); 73 FR 18562 (Apr. 4, 2008).
On September 25, 2008, complainants CryoCor and AMS and respondent CryoCath jointly moved to terminate the investigation based on a settlement agreement. On October 1, 2008, the Commission investigative attorney filed a response in support of the motion. On October 6, 2008, the ALJ determined to grant the motion based on his findings that the parties complied with the requirements of Commission rule 210.21(b) (19 CFR 210.21(b)) and that termination of the investigation on the basis of the settlement would not be contrary to the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers. No petitions for review of the subject ID were filed.
The Commission has determined not to review this ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
National Institute for Literacy.
Notice of a Closed Teleconference Meeting.
This notice sets forth the schedule and proposed agenda of an upcoming closed meeting of the National Institute for Literacy Advisory Board. The notice also describes the functions of the Committee. Notice of this meeting is required by Section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of its opportunity to attend. Due to scheduling difficulties, this notice is appearing in the
October 30, 2008.
The National Institute for Literacy, 1775 I St., NW., Suite 730, Washington, DC 20006.
Steve Langley, Staff Assistant, the National Institute for Literacy; 1775 I St., NW., Suite 730; phone: (202) 233–2025; fax: (202) 233–2050; e-mail:
The National Institute for Literacy Advisory Board is authorized by section 242 of the Workforce Investment Act of 1998, Public Law 105–220 (20 U.S.C. 9252). The Board consists of 10 individuals appointed by the President with the advice and consent of the Senate. The Board advises and makes recommendations to the Interagency Group that administers the Institute. The Interagency Group is composed of the Secretaries of Education, Labor, and Health and Human Services. The Interagency Group considers the Board's recommendations in planning the goals of the Institute and in implementing any programs to achieve those goals. Specifically, the Board performs the following functions: (a) Makes recommendations concerning the appointment of the Director and the staff of the Institute; (b) provides independent advice on operation of the Institute; and (c) receives reports from the Interagency Group and the Institute's Director.
The purpose of this meeting is to discuss the Director position for the Institute. The discussion is likely to disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy. The discussion must therefore be held in closed session under exemptions 2 and 6 of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(2) and (6). A summary of the activities at the closed session and related matters that are informative to the public and consistent with the policy of 5 U.S.C. 552b will be available to the public within 14 days of the meeting.
Records are kept of all Committee proceedings and are available for public inspection at the National Institute for Literacy, 1775 I St., NW., Suite 730, Washington, DC 20006, from the hours of 9 a.m. to 5 p.m., Eastern Time Monday through Friday.
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
The U.S. Nuclear Regulatory Commission (NRC, the Commission) has granted the request of Florida Power Corporation (the licensee) to withdraw its October 25, 2007, application for proposed amendment to Facility Operating License No. DPR–72 for the Crystal River Unit 3 Nuclear Generating Plant (CR–3) located in Citrus County, Florida.
The proposed amendment would have revised the CR–3 Technical Specifications to impose more restrictive voltage and frequency limits during surveillance testing of the emergency diesel generators.
The Commission had previously issued a Notice of Consideration of Issuance of Amendment published in the
For further details with respect to this action, see the application for amendment dated October 25, 2007, and the licensee's letter dated August 26, 2008, which withdrew the application for license amendment. Documents may be examined and/or copied for a fee at the NRC's Public Document Room (PDR) located at One White Flint North, Public File Area 01 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently-filed Postal. Service Parcel Return Service Contract 1 negotiated service agreement. This action is consistent with changes in a recent law governing postal operations.
1. Postal Service answers due on or before October 27, 2008.
2. Public comments due on October 29, 2008.
Stephen L. Sharfman, General Counsel, 202–789–6820 or
On October 15, 2008, the Postal Service filed a formal request pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The contract is assigned Docket No. CP2009–2. The Postal Service represents that the contract fits within the proposed Mail Classification Schedule (MCS) language.
The Postal Service filed much of the supporting materials, including the Governors' Decision and the specific Parcel Return Service Contract 1, under seal. In its Request, the Postal Service maintains that the contract and related financial information, including the customer's name and the accompanying analyses that provide prices, terms, conditions and financial projections should remain under seal. Request at 2.
The Commission establishes Docket Nos. MC2009–1, and CP2009–2 for consideration of the Request pertaining to the Parcel Return Service Contract 1 product and the related contract. In keeping with practice, these dockets are addressed on a consolidated basis for purposes of this Order; however, future filings should be made in the specific docket in which issues being addressed pertain.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR 3020 subpart B. Comments are due no later than October 29, 2008. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Paul L. Harrington to serve as Public Representative in these dockets.
As noted, the Postal Service filed much of the supporting materials under seal, including, among other things, (1) the Governor's certification and voting record, and (2) the signatures, printed names, titles and dates executing the contract on behalf of the Postal Service. The foregoing material would not appear to warrant confidential treatment. The Postal Service should file unredacted copies of the foregoing no later than October 27, 2008. Alternatively, if the Postal Service believes that such material should remain confidential, it shall file a detailed justification for its position no later than October 27, 2008.
The Commission takes its responsibility to protect confidential information very seriously. For the Commission to adequately differentiate confidential information from non-confidential information, participants should appropriately label every page of a confidential document as confidential. This duty to label extends to all sheets of supporting spreadsheets submitted by participants. The Postal Service is urged to employ this practice.
The Commission has reviewed the Postal Service's filings in these dockets. Pursuant to 39 CFR 3015.6, the Commission requests the Postal Service to provide written responses to the following questions. Answers should be provided as soon as practicable, but no later than October 27, 2008.
1. The following Excel spreadsheet incorporates several cost savings measures: ContractFinancialAnalysisPRS[contract partner].xls. Please provide a narrative describing the basis for these cost savings.
2. Please provide the supporting data and narrative explanation for the value for the following Excel file: ContractFinancialAnalysisPRS[contract partner].xls tab: PartnerProfile cell:C5.
3. (a) Please provide the formulas and the underlying data supporting them for all “hardcoded” numbers for the Excel file identified in Question 2.
(b) Do the underlying data reflect volume shifts due to this contract? If not, please explain.
4. Will the methodology approved in Docket No. RM2008–6 be used for purposes of updating costs for subsequent years of this contract?
It is ordered:
1. The Commission establishes Docket Nos. MC2009–1 and CP2009–2 for consideration of the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than October 29, 2008.
4. The Postal Service is directed to respond to the Commission's inquiries with respect to confidentiality and supplemental information as set forth in Sections III and IV of this Order no later than October 27, 2008.
5. The Secretary shall arrange for publication of this Order in the
By the Commission.
Securities and Exchange Commission (“Commission”).
Notice of application for a temporary order under Section 22(e)(3) of the Investment Company Act of 1940 (the “Act”).
Applicant filed an application for a temporary order to permit two of its series to suspend the right of redemption of their outstanding redeemable securities and to postpone payment for shares which have been submitted for redemption for which payment has not been made. The Commission issued an order on September 22, 2008 granting the requested order and is now providing an opportunity for interested persons to request a hearing.
The Reserve Fund (the “Applicant”), on behalf of two of its series, the Primary Fund and the U.S. Government Fund (the “Funds”).
Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicant with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on November 13, 2008, and should be accompanied by proof of service on Applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Applicant, 1250 Broadway, New York, NY 10001–3701.
Brian P. Murphy, Senior Counsel, at (202) 551–6825 (Division of Investment Management, Office of Chief Counsel).
The complete application may be obtained for a fee at the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549–1520 (tel. 202–551–5850).
Based on the representations provided by the Applicant in its application, including those relating to the current extraordinary market conditions and the actions by the Funds' board of trustees (the “board”) on September 17th, the Commission issued an Order on September 22, 2008 pursuant to Section 22(e)(3) of the Act as requested by the Applicant (the “Order”).
By the Commission.
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
Pursuant to Rule 608(b)(3)(ii) under the Act,
The Amendments propose to add BATS Exchange, Inc. as a new Participant to each Plan. The text of the proposed Amendments is available on the CTA's Web site (
Not applicable.
Because the Amendments constitute Ministerial Amendments under both clause (1) of Section IV(b) of the CTA Plan and clause (1) of Section IV(c) of the CQ Plan, the Chairman of CTA and the CQ Plan's Operating Committee may submit these Amendments to the Commission on behalf of the Participants in the Plans. Pursuant to Rule 608(b)(3)(ii) under the Act,
The proposed Amendments do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The Participants do not believe that the proposed plan Amendments introduce terms that are unreasonably discriminatory for the purposes of Section 11A(c)(1)(D) of the Exchange Act.
Not applicable.
a.
b.
c.
Not applicable.
d.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Amendments are 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 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 is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, November 6, 2008 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (6), (7), 9(ii) and (10) permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting scheduled for Thursday, November 6, 2008 will be:
Formal orders of investigation;
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings of an enforcement nature;
Adjudicatory matters; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551–5400.
It appears to the Securities and Exchange Commission that the public interest and the protection of investors require a suspension of trading in the securities of Hat Trick Beverage, Inc. because there is a lack of current and accurate information concerning its securities. Questions have arisen concerning the accuracy and adequacy of statements in the company's press releases regarding its business operations. Hat Trick Beverage, Inc., a company that has made no public filings with the Commission, is quoted on the Pink Sheets under the ticker symbol HKBV.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. ET, October 27, 2008, through 11:59 p.m. ET, on November 7, 2008.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend Section 4(c) of Schedule A to the FINRA By-Laws (“Schedule A”) to increase certain qualification examination fees. Below is the text of the proposed rule change. Proposed new language is italicized; proposed deletions are in brackets.
Schedule A to the By-Laws of the Corporation
(a) and (b) No change
(c) The following fees shall be assessed to each individual who registers to take an examination as described below. These fees are in addition to the registration fee described in paragraph (b).
(1) through (3) No change
(d) through (h) No change
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.
Any person associated with a member firm who is engaged in the securities business of the firm must register with FINRA. As part of the registration process, securities professionals must pass a qualification examination to demonstrate competence in each area in which they intend to work. These mandatory qualification examinations cover a broad range of subjects on the markets, products, a person's responsibilities in a given position, securities industry rules and the regulatory structure. Some qualification examinations are sponsored (
FINRA administers qualification examinations via computer through the PROCTOR® system
The proposed rule change would amend Schedule A to increase certain qualification examination fees.
Specifically, the proposed rule change would amend Schedule A as follows:
The effective date of the proposed rule change would be January 2, 2009. Specifically, the proposed examination fees would become effective for “120-day examination windows” opened in the CRD® on or after January 2, 2009.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
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 Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to amend the Nasdaq Options Market Rules (“NOM Rules”) to eliminate the requirement for separate designations of Senior Registered Options Principal (“SROP”) and Compliance Registered Options Principal (“CROP”), to require a member to integrate the responsibility for supervision of its public customer options business into its overall supervisory and compliance program, and to make certain related changes to the NOM Rules. The rule proposal, which is effective upon filing with the Commission, shall become operative 30 days after filing pursuant to Rule 19b–4(f)(6) of the Act. The text of the proposed rule is available on the Exchange's Web site at
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the NOM Rules to integrate the responsibility for supervision of a member's public customer options business into its overall supervisory and compliance program. The proposed rule change is substantively similar to recent amendments to the rules of Financial Industry Regulatory Authority (“FINRA”), which were approved by the Commission.
The Exchange does not believe that eliminating the SROP and CROP requirements would lead to a reduction in supervision, as firms have an obligation to designate an appropriately registered principal(s) to supervise their public customer options activities pursuant to Nasdaq Rule 3010, which requires Nasdaq members to comply with NASD Rule 3010
The proposed rule change also makes two technical changes. First, all references to “Options Principal” would be changed to “Registered Options and Security Futures Principal” to reflect the correct title of such principals, consistent with the other NOM Rules. Second, all references to “put and call” would be deleted before options, and “options” will mean all types of options.
In addition, the proposed rule change would amend NOM Rules Chapter XI in several respects. First, Section 7, paragraph (f), which relates to the opening of accounts, would be amended to delete the reference to the SROP and CROP and require that a specific Registered Options and Security Futures Principal(s) be designated to be responsible for approving customer accounts that do not meet the specific criteria and standards for writing uncovered short option transactions and for maintaining written records of the reasons for every account so approved. The proposed rule change would allow members the flexibility to assign this responsibility, which currently rests with the SROP and/or CROP, to a specific Registered Options and Security Futures Principal.
Second, references to the SROP and CROP would be deleted and a new paragraph (a) would be inserted into Section 8, which relates to supervision of accounts. The new paragraph (a) would make clear that a member that conducts a public customer options business must ensure its written supervisory system policies and procedures pursuant to NASD Rules 3010, 3012, and 3013 adequately address its public customer options business. Although the proposed rule change would eliminate entirely the positions and titles of the SROP and CROP, a member would still be required pursuant to NASD Rule 3010(a)(2) to designate “an appropriately registered principal(s) with authority to carry out the supervisory responsibilities of the member for each type of business in which it engages for which registration as a broker/dealer is required,” which would include designating an Options Principal to supervise a member's public customer options activities.
Third, Nasdaq proposes amending Section 10, which relates to discretionary accounts, to eliminate references to the CROP and SROP, and
Proposed NOM Rules Chapter XI, Section 10(e) would allow a participant to exercise time and price discretion on orders for the purchase or sale of a definite number of options contracts in a specified security. The Exchange proposes to limit the duration of this discretionary authority to the day it is granted, absent written authorization to the contrary. Additionally, the proposed rule would require any exercise of time and price discretion to be reflected on the customer order ticket. The proposed one-day limitation would not apply to time and price discretion exercised for orders affected with or for an institutional account (as defined in the NOM Rules) pursuant to valid Good-Till Cancelled instructions issued on a “not held” basis.
The Exchange believes that investors will receive greater protection by clarifying the time such discretionary orders remain pending.
Nasdaq also proposes to add NOM Rules Chapter XI, Section 10(f), which requires any participant that does not utilize computerized surveillance tools for the frequent and appropriate review of discretionary account activity to establish and implement procedures to require Registered Options and Security Futures-qualified individuals who have been designated to review discretionary accounts to approve and initial each discretionary order on the day entered. The Exchange believes that any member that does not use computerized tools for the frequent and adequate surveillance of options discretionary account activity should continue to be required to perform the daily manual review of discretionary orders.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited nor were any received with respect to the proposed rule change.
The Exchange has designated the proposed rule change as one that 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. Therefore, the foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of 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 Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room, 100 F Street, NW., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of such filing also will be available for inspection and copying at the principal office of Nasdaq.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR–NASDAQ–2008–081 and should be submitted on or before November 19, 2008.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 12, 2008, the New York Stock Exchange LLC
On July 15, 2008, the Exchange filed Amendment No. 1 to the proposed rule change. The proposed rule change, as modified by Amendment No. 1, was published for public comment in the
Section 11(b) of the Act
The rise of the electronic Hybrid Market has fundamentally altered NYSE's trading environment. Traditionally, price discovery on the Exchange took place almost exclusively on the Floor in the form of face-to-face interactions among brokers and specialists. These interactions have diminished as electronic trading has become more important on the Exchange.
In addition, information that once was exclusive to the Floor, such as the most up-to-date quotes and last sale prices, is now widely available off the Floor through electronic means. At the same time, the Exchange believes that it is no longer the dominant trading market for many NYSE-listed securities, as competition from other market centers has increased.
The increase in electronic executions on the Exchange as well as the increase in the use of smart routing engines by market participants of all types has reduced the advantages once enjoyed by Floor brokers and specialists. Indeed, NYSE has argued that the informational advantage has shifted “upstairs” where
Because of these changes, NYSE is proposing to adopt its New Model, which the Exchange believes would provide a more robust trading model on the Floor while preserving the existing framework for trading and some of the key responsibilities of its market participants that NYSE believes make it unique. The Exchange believes that the proposed changes would improve market quality in the form of tighter spreads, greater liquidity, and opportunities for price improvement.
The Exchange proposes to eliminate the “specialist” category of market participants and create a new category of market participants, DMMs.
As part of the redesign of its market, NYSE proposes to amend the rules governing allocation of shares among the participants in a trade with an incoming order.
The Exchange also proposes to provide all market participants with the ability to maintain non-displayed “hidden interest”—
As indicated above, the New Model proposal includes proposed changes to the roles of the Exchange's various market participant groups to reflect new patterns of trading and new obligations. These include the phasing out of NYSE's specialist system and the adoption of a Designated Market Maker structure. In addition, the Exchange is making changes to the role of, and tools available to, Floor brokers, and is giving new tools to off-Floor participants that will enable them to participate in the market more directly. These changes are described in more detail below.
The Exchange believes that its new market model requires a new type of market maker
As described in further detail below, the Exchange proposes to give DMM Units tools and opportunities that are not available to specialists currently, along with modified obligations, that the Exchange believes are more commensurate with trading in electronic markets. At the same time, the Exchange would preserve several aspects of the specialist system that it believes are beneficial to the market and the investing public.
Current NYSE Rule 104, relating to specialist dealings, will be amended and renamed 104T and will be operative and effective through the end of Phase 1. The Exchange also proposes a new Rule 104 that will be implemented during Phase 2.
The Exchange proposes to require that member organizations who want to operate a DMM Unit file an application in writing and be approved by NYSE Regulation prior to operating a DMM Unit. The application and approval requirement would be waived for existing NYSE specialist firms that decide to create a DMM Unit.
DMMs employed by DMM Units to work on the Floor of the Exchange will be required to be approved and registered with the Exchange. In order to obtain such approval, applicants will need to submit an application to NYSE Regulation, Inc., which will assess an applicant's regulatory fitness, and successfully complete a qualifications examination prescribed by the Exchange.
The Exchange proposes to amend the provision in Exchange rules that makes specialists the “responsible broker-dealer” for purposes of Limit Order Display and other obligations under both the Act and regulations promulgated thereunder. Under NYSE Rule 60, specialists are currently solely responsible for quoting the highest bids and lowest offers on the Exchange for all reported securities.
The Exchange is of the view that this rule is appropriate in a manual trading environment, where the specialist post is the primary locus for trading in securities and where the specialist oversees the reporting of all executions. The Exchange believes this rule makes less sense in an automated market. Market participants who are not specialists post their interest electronically in the form of DOT orders or e-Quotes (broker agency interest files), and Exchange systems process and publish that interest automatically. The Exchange's quote today now includes the Floor broker's agency interest, specialist interest, and electronically entered interest of off-Floor participants, and all interest included in the Exchange's quote is identifiable by the Exchange's systems.
Given the automated processing of participant orders, quotations, and executions, the Exchange believes that the notion that the specialist is the sole responsible broker-dealer is obsolete. And, because various obligations may attach based on whether a participant is designated as the responsible broker-dealer, the Exchange believes that designating the DMM as the “responsible broker-dealer” could place these obligations on a nominal participant while relieving the logically responsible participant of that same obligation. To address these limitations, NYSE is proposing to amend NYSE Rule 60 to reflect that the member or member organization entering a bid or offer in a security is the “responsible broker-dealer” to the extent of such bid or offer.
Although the Exchange does not propose to require DMMs to act as “responsible broker-dealers,” the Exchange does propose to impose on each DMM affirmative obligations with respect to the quality of the markets in securities assigned to it. The Exchange's proposed Rule 104 sets forth the DMMs' affirmative obligation as follows:
The function of a member acting as a DMM on the Floor of the Exchange includes the maintenance, in so far as reasonably practicable, of a fair and orderly market on the Exchange in the stocks in which he or she is so acting. The maintenance of a fair and orderly market implies the maintenance of price continuity with reasonable depth, to the extent possible consistent with the ability of participants to use reserve orders, and the minimizing of the effects of temporary disparity between supply and demand. In connection with the maintenance of a fair and orderly market, it is commonly desirable that a member acting as DMM engage to a reasonable degree under existing circumstances in dealings for the DMM's own account when lack of price continuity, lack of depth, or disparity between supply and demand exists or is reasonably to be anticipated.
In addition, DMM Units would be required to maintain adequate minimum capital
DMMs would further be required to maintain a bid or offer at the National Best Bid or National Best Offer (“inside”) for securities in which the DMM is registered for a certain percentage of the trading day based on the average daily volume of the security. For securities that have a consolidated average daily volume of less than one million shares per calendar month, a DMM Unit must maintain a bid or an offer at the NBBO for at least 10% of the trading day (calculated as an average over the course of a calendar month). For securities that have a consolidated average daily volume of equal to or greater than one million shares per calendar month, a DMM Unit must maintain a bid or an offer at the NBBO for at least 5% or more of the trading day (calculated as an average over the courts of a calendar month). Reserve or
The Exchange further proposes that DMMs retain the re-entry requirements currently imposed on specialists contained in NYSE Rule 104. As such, DMMs effecting Neutral, Non-Conditional and Conditional transactions would still be required to re-enter liquidity on the opposite side of the market depending on the type of transaction executed by the DMM.
Once Phase 2 has been implemented, DMMs would not receive an order-by-order advance “look” at incoming orders.
Although the DMM would no longer receive order by order information, there are certain times during which the Exchange believes human interaction is essential to market quality and maintaining a fair and orderly market; specifically, during opening and re-opening transactions, closing transactions, block transactions, gap quote situations, and when trading reaches liquidity replenishment points (“LRPs”) that would lock or cross the market.
The Exchange believes that due to the transformation of the equities markets in the United States, the specialists' negative obligation no longer makes sense and should be eliminated. Historically, in a manual, floor-based market, specialists often had a significant informational advantage from being at the center of substantially all of the exchange's activity in a given security. Similarly, in the Hybrid Market, the specialist's advance “look” at incoming orders provided the specialist with a unique and potentially significant informational advantage over other market participants.
Given the real-time availability of market information and resultant increase in market transparency in today's markets and the Exchange's proposed elimination of the advance “look” at incoming orders by the DMM, the Exchange believes that the imposition of a negative obligation on DMMs is unnecessary. Accordingly, the Exchange is proposing that, beginning with the implementation of Phase 2, DMMs would no longer be deemed to be “specialists” or to be subject to the negative obligation.
DMMs, however, would continue to facilitate manual transactions on the Exchange. When DMMs are facilitating manual transactions, Exchange systems would provide DMMs the total volume of all orders eligible to participate
Although DMMs would no longer be restricted by a negative obligation, DMMs would have an affirmative obligation to contribute to the maintenance of a fair and orderly market by committing capital in order to add liquidity to the market when there is little or no liquidity, and bridge the gaps in supply and demand by trading for their own account. To assist DMMs in meeting these market making responsibilities, DMMs would be permitted to maintain systems that employ algorithms to make trading and quoting decisions (“DMM Interest”) on behalf of each DMM.
DMM Interest would be permitted to: (i) Supplement the size of the existing Exchange BBO; (ii) maintain displayed and non-displayed DMM Interest, as described more fully below;
In addition to DMM Interest, DMMs would be permitted to transmit to the Display Book a Capital Commitment Schedule (“CCS”) setting forth additional liquidity that the DMM would be willing to provide at specific price points. The CCS would inform the Display Book of the amount of shares that the DMM is willing to trade at price points outside, at, and inside the Exchange BBO. The CCS is separate and distinct from the DMM Interest. DMM algorithms would send the Exchange this schedule of additional non-displayed trading interest.
CCS interest would be accessed by the Exchange's systems in two ways,
If the number of shares that would be allocated to the CCS interest at the better price is greater than the number of shares that would be allocated to the CCS interest at the completion price, then the CCS interest would participate at the better price (with CCS interest yielding to any other interest in Exchange systems at that price). Any remaining balance of the incoming order would be executed at the completion price against displayable and non-displayable interest pursuant to NYSE Rule 72.
A DMM's CCS interest inside the Exchange BBO would be accessed by Exchange systems to provide price improvement to incoming orders and to match better-priced bids and offers if available on away market centers. DMMs would not be required to be represented in the bid or the offer in order to provide CCS interest inside the Exchange BBO.
Pursuant to proposed NYSE Rule 1000(e), CCS interest priced inside the Exchange BBO could trade with interest arriving in the Exchange market that: (i) Is eligible to trade at or through the Exchange BBO; (ii) is eligible to trade at the price of non-displayable reserve interest of Reserve Orders and Floor broker agency interest files reserve interest (“hidden interest”); or (iii) is eligible to route to away market interest for execution, if the total volume of CCS interest, d-Quote interest in Floor broker agency interest files, and any other hidden interest would be sufficient to fully execute the incoming order at a price inside the Exchange BBO. The Display Book would determine the price point inside the Exchange BBO at which the maximum volume of CCS interest would trade, taking into account the available d-Quotes and hidden interest. The CCS interest would then participate at that price, on parity with all other interest at that price (i.e., d-Quotes and non-displayed reserve interest). Any reserve interest of the DMM that is also eligible to trade at the price inside the Exchange BBO at which the CCS interest would participate would be aggregated with the DMM's CCS interest at that price when the trade execution is allocated. In this manner, an incoming order may be executed at multiple price points inside the Exchange BBO against d-quotes, non-displayable reserve interest of all participants, and CCS interest. However, CCS interest may only participate once if more than one execution is required to fill the order.
The Exchange proposes to amend NYSE Rule 13 and to delete NYSE Rules 70.25(d)(i)(A), 123A.30 and 1000(d)(2)(D) to eliminate percentage orders. As a result of these proposed amendments, Floor brokers would no longer be permitted to enter CAP–DI orders. In place of this order type, the Exchange intends to provide Floor brokers access to algorithmic technology that would replicate the trading strategy achieved by the use of CAP–DI orders through the Floor broker's handheld electronic device.
The Exchange believes that this change is necessary to improve the efficiency of the Display Book. CAP–DI orders require the system to monitor and calculate many variables, and passively converted CAP–DI orders impede the specialist's ability to function efficiently in an automated market because the specialist must manually complete the passive conversion.
The Exchange further proposes to amend NYSE Rule 70 to enhance the functionality of the Floor broker d-Quote to increase the liquidity available for executions on the Exchange. Specifically, the Exchange proposes to allow d-Quotes to partially or completely fill a non-marketable immediate or cancel order (“IOC”), which includes NYSE IOC, Reg NMS IOC, and Intermarket Sweep Orders,
To further increase the liquidity available at the opening and closing transaction, the Exchange proposes to amend NYSE Rule 70.25(a)(ii) to allow d-Quotes to be active in the opening and closing transactions.
The Exchange proposes to have Floor broker interest published in the OpenBook system at every price point (unless designated “Do Not Display” or “DND”). The displayable portions of Floor broker interest that is designated DND will only be published in OpenBook when such interest is at the Exchange BBO. Floor broker agency interest employing Non-Displayed Reserve functionality, as described further below,
Floor brokers, off-Floor participants, and DMMs would continue to have the
Under the proposed rule change, “Minimum Display Orders” require that a minimum of one round lot of the order be designated for display. The Exchange proposes to make permanent NYSE Rule 13 governing Reserve Orders, and also proposes to provide Floor brokers and DMMs with equivalent functionality via a conforming amendment to proposed NYSE Rules 70(e) and 104. Collectively, this minimum display reserve functionality is referred to as “Minimum Display Interest.” Each time a Minimum Display Order is replenished from reserve interest, a new time-stamp is created for the replenished portion of that Minimum Display Order, while the remaining reserve interest retains the time-stamp of its original entry. Minimum Display Interest would be eligible to participate in manual executions, but would not be identifiable to the DMM on an order-by-order basis. Exchange systems would include all Minimum Display Interest in the aggregate order information available for execution at a price point when the DMM facilitates a manual transaction.
The Exchange further proposes that the aggregate of Minimum Display Interest be included in the aggregate interest available to be seen by the DMM in order to provide information about orders available in Exchange systems for response to a Floor broker's market probe request pursuant to NYSE Rule 115. Currently, during a manual execution, Floor broker DND reserve interest that has a displayed quantity and Reserve Orders pursuant to NYSE Rule 13 are included in the aggregated order information displayed to the specialist only during manual executions (
Pursuant to NYSE Rule 115(iii) a specialist may provide information about orders contained in the Display Book, referred to also as a market probe, to provide information about buying or selling interest in the market. This information can include aggregated buying or selling interest contained in Floor broker agency interest files other than interest the broker has chosen to exclude from the aggregated buying and selling interest in response to an inquiry from a member conducting a market probe in the normal course of business.
The Exchange further proposes to amend NYSE Rule 70.20(h)(ii) to remove the prohibition against specialist's ability to provide information about Floor broker reserve interest. The Exchange proposes that all Floor broker interest not designated DND be included in the information eligible for dissemination pursuant to NYSE Rule 115.
In addition to Minimum Display Interest, the Exchange further proposes to provide all market participants with the ability to maintain non-displayed interest. This proposed type of reserve interest would not require any of the order to be designated for display and would be available to all market participants. The Exchange proposes to create the “Non-Displayed Reserve Order” for off-Floor participants and provide Floor brokers and DMMs with equivalent functionality. Non-Displayed Reserve Orders of off-Floor customers would not be included in the information available to the DMM for manual execution.
Floor brokers would also be able to utilize non-displayed reserve functionality to enter reserve interest. If the Floor broker uses this functionality, there is no interest displayed in the published quotation, but the interest will be eligible for manual executions because the DMM has the ability to view the Floor broker agency interest in the aggregate. Floor broker agency interest file reserve interest may also be designated as Do Not Display or “DND,” meaning such interest will not be available to the DMM for manual executions. As such, Non-Displayed Reserve Orders and Floor broker non-displayed reserve interest that is designated DND would not participate at the open or the close, during a gap quote situation, or when a manual execution is required to trade out of an LRP that locks or crosses the market. Therefore, these types of interest may be executed at an inferior price, and will not be protected in any manual trade—at the choice of the customer. DMM interest employing Non-Displayed Reserve functionality would, however, be eligible to participate in a manual transaction.
Off-Floor participants that want to have non-displayed liquidity participate in a manual transaction would be required to send a Minimum Display Order. Similarly, Floor brokers that choose to have non-displayed liquidity participate in a manual transaction must not designate such interest DND.
The Exchange proposes to amend NYSE Rule 72 to provide to all market participants the ability to receive executions on an equal basis with other interest available at that price. As with NYSE's current parity rules, individual Floor brokers and the DMM registered in the security would each constitute a single market participant, but all orders received by the Display Book directly from off-Floor participants would together constitute a single market participant, the Off-Floor Participant, for the purpose of share allocation. However, unlike specialist interest, which under current NYSE rules must yield to all off-Floor interest residing on the Display Book, DMM Interest would be on parity and would not be required to yield to any off-Floor interest.
Proposed NYSE Rule 72 would modify the concept of priority to provide that, where there is more than one bidder (offerer) participating in an execution and one of the bids (offers) was established as the first at a particular price and such bid or offer is the only interest when such price is or becomes the best bid or offer published by the Exchange (the “Setting Interest”), the displayed portion of such Setting Interest is entitled to priority. In order to qualify as Setting Interest, it must have been the only
Exchange systems would allocate the first 15% of any execution (subject to a minimum of one round lot)
The Exchange proposes to have Priority Interest retain its standing even if the Exchange BBO moves away from the price point. In this case, if the Exchange BBO returns to that price point later in the same trading session, the remaining portion of the Priority Interest would again enjoy priority until it is executed or cancelled, trading in the stock is halted, the trading session ends, or the BBO moves away again.
Partial cancellations would count first against the non-Priority Interest of any Setting Interest. All allocations to the Setting Interest would be decremented from the Priority Interest first whether the allocation is based on priority or parity. Setting Interest may be executed on parity with no priority allocation if the quote moves to a better price point and thereafter an incoming order exceeds the shares available for execution at the newly established Exchange BBO. In those instances, the Setting Interest will be executed on parity and the Priority Interest will be decremented first.
Where there is no Setting Interest, Exchange systems would divide the size of the executing order by the number of participants. The total number of shares to be allocated to each participant (
On each trading day, the allocation wheel for each security would be set to begin with the participant whose interest is entered or retained first on a time basis. Thereafter, participants would be added to the wheel as their interest joins existing interest at a particular price point. If a participant cancels its interest and then rejoins, that participant would join as the last position on the wheel at that time.
Non-displayed interest at price points within the Exchange BBO would also trade on parity at each price point. Thus, non-displayed interest that is priced within the Exchange BBO would be eligible to be executed on parity at each price point against incoming orders.
The Exchange further proposes to modify its overall allocation logic to require that, for all executions at or through the Exchange BBO, displayable interest trades ahead of non-displayable interest available for execution at the same price point. Once all displayable interest has been satisfied at a given price point, the remainder of the incoming order would execute against non-displayable interest at that price point. All categories of non-displayable interest would trade on parity, with the exception of the DMM's CCS interest, which yields to all other interest at the same price.
In addition to the proposed rule changes discussed above, the Exchange has proposed numerous minor substantive changes and conforming changes throughout the Exchange's rule book in order to conform NYSE's rules to the proposed New Model.
The proposed amendments herein require the Exchange to make significant modifications to Exchange systems. The Exchange therefore proposes that the proposed rule change be implemented in stages pursuant to the schedule outlined below.
The Exchange proposes that the amendments to NYSE Rule 13 regarding the establishment of Reserve Order types and the elimination of CAP orders would be implemented upon Commission approval as permanent changes to the NYSE rulebook. Similarly, all conforming changes to other Exchange rules to enable Floor brokers and DMMs to use equivalent reserve order functionality would be implemented upon Commission approval as permanent changes to the NYSE rulebook. In addition, the Exchange proposes that amendments to NYSE Rules 2 and 103 establishing the DMMs and DMM units also would be implemented upon Commission approval as permanent changes to the NYSE rulebook.
The Exchange further proposes that the proposed amendments to NYSE Rule 70 that: (i) Allow for the publication of Floor broker interest to OpenBook; (ii) allow d-Quote instructions to be active during the open and close; and (iii) allow d-Quotes to trade with non-marketable IOC orders would be implemented upon Commission approval as a permanent change to the NYSE rulebook.
The Exchange further proposes to implement certain provisions of the New Model proposal on a pilot basis (“New Model Pilot”) upon Commission approval of the proposed rule change. The New Model Pilot would operate until October 1, 2009.
During Phase 1 of the New Model Pilot, the Exchange would implement proposed NYSE Rule 72 and proposed NYSE Rule 104T.
With the implementation of Phase 2, NYSE Rule 104T would cease operation and new NYSE Rule 104 would supersede it. Beginning in Phase 2, the
During the operation of the New Model Pilot, the Exchange has committed to provide the Commission's Division of Trading and Markets and Office of Economic Analysis with statistics related to market quality, trading activity, and sample statistics as requested by the Commission.
In Amendment No. 2 to the proposed rule change, the Exchange proposes to: (i) Clarify how odd-lot information will be transmitted to the DMM Unit algorithm prior to the opening; (ii) retain and expand the restriction, currently applicable to specialists, trading assistants, and anyone acting on their behalf from accessing certain Exchange systems and apply it to DMMs, trading assistants, and anyone acting on their behalf; (iii) make technical amendments to NYSE Rules 13, 52, 72, 299A, and 1000; (iv) reconcile the rule language of NYSE Rules 98, 98A, 99, 104T, 105, 113 and 460 with amendments approved by the Commission pursuant to filing SR–NYSE–2008–45 (“2008–45 Amendments”);
Specifically, Amendment No. 2 proposes to clarify that, while the individual DMM would have access only to aggregate order information as it pertains to round-lot and odd-lot orders, the DMM Unit algorithm would receive odd-lot information on an order-by-order basis prior to the opening. Odd-lot orders on the Exchange are processed in a separate system from the Exchange systems that execute round-lot orders. Odd-lots are executed systemically by Exchange systems designated solely for odd-lot orders (the “odd-lot System”).
In addition, Amendment No. 2 proposes to clarify that the Exchange seeks to retain and expand the restriction, currently applicable to specialists, trading assistants, and anyone acting on their behalf from accessing certain Exchange systems other than for the purpose of effecting transactions that are reasonably imminent, and apply it to DMMs, trading assistants, and anyone acting on their behalf.
Amendment No. 2 also proposes technical corrections to the rule text. Specifically, the Exchange proposes to change the word “specialist” to “DMM” in NYSE Rule 13 because during the editing process the word specialist was inadvertently left in this rule. The Exchange further amended their proposal to remove previously proposed changes to NYSE Rule 52 that the Exchange instead intends to be the subject of a separate future filing. Also, rule language designating proposed Rule 72 as operating in the New Model Pilot was inadvertently not underscored. The Exchange proposes to add the required underscoring to designate that text as new language pursuant to this filing. In addition, Amendment 2 reflects the Exchange's proposal to delete subparagraph (b)(2) of the Supplemental Material .10 of NYSE Rule 299A because, similarly to specialists under the current NYSE market model, DMMs will not be allowed to “stop” stock. Further, in order to correct lettering errors in NYSE Rule 1000, the Exchange proposes to move the language denoting the Rule as operating in the New Model Pilot to directly after the name of the rule and retain the original lettering.
On August 7, 2008, the Commission approved the 2008–45 Amendments which, among other things, modified the rule text of NYSE Rules 98, 98A, 99, 104T, 105, 113 and 460. Through Amendment No. 2, the Exchange seeks to change the term “specialist” to DMM in NYSE Rules 98 and 98A to reflect the new language approved in the 2008–45 Amendments.
In addition, on August 13, 2008, the Exchange filed with the Commission for immediate effectiveness a proposal to amend NYSE Rule 104(b) to provide for an automated opening message that is effectuated through the specialist Application Programmed Interface to allow specialists to automatically open a security on a transaction. Through Amendment No. 2, the Exchange proposes to amend Rule 104T(b)(ii) to incorporate the rule language from the 2008–73 Amendments.
Finally, during the operation of the New Model Pilot, the Exchange is committed to providing the Commission's Division of Trading and Markets and the Office of Economic Analysis with statistics related to market quality, trading activity, and sample statistics. The metrics discussed below, along with any other metrics the Exchange may choose to provide, will be transmitted to the Commission on a monthly basis. The Exchange will maintain average measures for each
On or before the 20th day of the second calendar month following the Approval Date,
1. The specialist time at the NBBO by security.
2. The effective spread by security.
3. The specialist volume broken out by “specialist interest type” (
4. The average depth at the NBBO for specialists.
On the 20th day of the month following the initial provision of data, the Exchange will provide the Commission with the data described below, which will include data for all the trade dates in the months directly following the Approval Date through the last trade date of the previous month. On the same date, the Exchange will additionally provide data related to the average depth at the NBBO for Floor brokers and orders represented in the Display Book for the two months prior to the commencement of the New Model Pilot.
1. The DMM time at the NBBO by security.
2. The effective spread by security.
3. The DMM volume broken out by “DMM interest type” (
4. The average depth at the NBBO by market participant (DMMs, Floor brokers, and orders represented in the Display Book).
5. The ratio of (i) shares not executed on the Display Book due to DMM execution to (ii) the shares executed by the DMM.
6. Effective spread for: (a) orders that involve DMM liquidity provision and (b) orders that are executed without DMM liquidity (for similar order size categories).
In Amendment No. 3 to the proposed rule change, the Exchange proposes to: (i) Modify the dates that the Exchange is required to provide data to the Commission; (ii) amend the operative dates of certain rules; (iii) clarify the implementation schedule of the New Model Pilot; and (iv) make technical amendments to NYSE Rules 98 and 98 Former (
In Amendment No. 3, the Exchange clarified that the implementation of the New Model Pilot would occur in two phases, Phase 1 and Phase 2. Each phase of the New Model Pilot would commence initially in three or four securities. The Exchange proposes that after a period of monitoring the system operation, NYSE would progressively implement each phase of the New Model Pilot in additional securities until that phase is operative in all securities traded on the Floor. The rules applicable to each phase of the New Model Pilot would apply to trading in securities as they are added to each phase. Implementation of Phase 1 will be completed no later than five weeks after the Approval Date, and implementation of Phase 2 will be completed no later than ten weeks after the Approval Date.
After careful review, we find 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. In particular, we find that the proposed rule change, as amended, is consistent with Section 6(b)(5) of the Act
One major element of NYSE's New Model is the elimination of specialists and the introduction of Designated Market Makers. DMMs would be assigned affirmative obligations, some of which are similar to those currently imposed on specialists. Specifically, DMMs would have an obligation to use the firm's own capital to contribute to the maintenance of a fair and orderly market on the Exchange in its assigned securities, would be subject to depth guidelines,
In exchange for these obligations, NYSE has proposed that DMMs be permitted to freely trade for their own account on parity with other market participants (
Section 6(b)(5) of the Act requires that the rules of a national securities exchange protect investors and the public interest.
We recognize that the participation of market makers in exchange markets may benefit public customers by promoting more liquid and efficient trading, and that an exchange may legitimately confer benefits on market participants willing to accept substantial responsibilities to contribute to market quality.
We carefully review trading rule proposals that seek to offer special advantages to market makers. Although an exchange may reward such participants for the benefits they provide to the exchange's market, such rewards must not be disproportionate to the services provided.
Under NYSE's current market model, specialists are designated as the “responsible broker-dealer” for orders resting on the Display Book. NYSE specialists, by virtue of their advance “look” at incoming orders and their position on the trading floor, also have an informational advantage over other market participants which, if unchecked, could permit them to adjust their trading interest to the disadvantage of orders residing on the book. Because of this, specialists are required to yield to all off-Floor participant orders on the Display Book and are subject to the negative obligation not to trade for their own account in any security in which the specialist is registered “unless such dealings are reasonably necessary to permit such specialist to maintain a fair and orderly market.”
In support of its proposal to eliminate the negative obligation and allow the specialists' successors, DMMs, to trade on parity with public customer orders, NYSE argues that the negative obligation is “an outmoded vestige of trading in a wholly different market environment and is unnecessary.”
We generally agree that, given the widespread adoption of electronic, automated trading, the ability of market participants to avail themselves of robust real-time market information, and the reduction in NYSE's market share in recent years, the historic time-and-place advantage of specialists has been reduced in today's market environment, though we do not believe that such advantage has been completely eliminated.
We believe that the proposed elimination of the specialist's “look”—when viewed in conjunction with the obligations imposed upon DMMs, including a general affirmative obligation on the DMM to use its capital to contribute to the maintenance of a fair and orderly market in its assigned securities; an obligation to quote at the
In addition, while we believe that the proposed operation of the DMM's unique CCS functionality is designed to provide a slightly better execution price for a portion of a large incoming order because that portion of the order could receive an execution price of a penny better than it would have received absent the CCS interest, we note that the CCS would provide DMMs the opportunity to obtain its CCS execution at an advantageous price with minimal risk, and with no contribution to the visible depth of the market.
Accordingly, we are approving the proposal's provisions with regard to the elimination of specialists and the creation of DMMs, but we are approving certain key provisions on a pilot basis until October 1, 2009, as discussed more fully below in Part III.D.
NYSE proposes to revise the order allocation methodology of Rule 72 to provide that: (i) All market participants would receive executions on parity; (ii) “Setting Interest” that establishes the Exchange BBO would be entitled to priority and would receive the first 15% of any incoming order (subject to a minimum of one round lot) in advance of the regular allocation of such order; and (iii) for executions occurring outside the Exchange BBO, all displayable interest would be executed before any non-displayable interest.
One of the most significant changes in the Exchange's proposal is the elimination of the requirement currently imposed upon specialists to yield to off-Floor participant orders on the Display Book. Once the specialist's advance “look” at incoming orders is fully eliminated, and DMMs are no longer subject to the specialist's agency responsibilities with respect to orders on the Display Book, we agree that it would no longer be necessary to require DMMs to yield to off-Floor participant orders on the Display Book. However, the Exchange's proposal does not merely eliminate the requirement to yield to off-Floor participants, but rather provides DMMs with a substantial advantage over off-Floor orders sent to the Display Book. As the Exchange stated in its proposal, it is amending its Rule 72 “to provide to all market participants the ability to receive executions on an equal basis (‘parity’) with other interest available at that price.”
In addition, NYSE's proposal would permit an interim period—from the approval of this proposed rule change through completion of Phase 2—when DMMs would have parity with other market participants (
For these reasons, we are concerned about the effects the proposed parity rule may have on market quality, book depth, and the execution rates of public customer orders posted to Display Book. Therefore, we have determined to approve proposed Rule 72 on a pilot basis, as discussed more fully below in Part III.D.
With respect to the priority provisions for Setting Interest under proposed Rule 72(a), in addition to the proposed 15% priority allocation, the Setting Interest would also participate on parity with other market participants (as it would even if it were not the Setting Interest) in the allocation of the remaining 85% of an incoming order.
Finally, we believe that the proposed provisions designed to ensure that all
In April 2008, the Exchange implemented a pilot program that provides reserve order functionality for orders with a minimum display quantity of one round lot, now proposed to be called Minimum Display Reserve Orders, to off-Floor market participants.
We believe that extending the hidden interest functionality of Minimum Display and Non-Displayed Reserve Orders to all market participants would help level the playing field among NYSE members on and off the Floor, and is consistent with the Section 6(b)(5) of the Act, because it is designed to promote just and equitable principles of trade among Exchange customers and members and is not unfairly discriminatory. In addition, we agree that these additional order types, by expanding the opportunities for market participants to post different types of liquidity on the exchange, should result in deeper liquidity and thus may contribute to overall market quality. We note that the rules of other national securities exchanges also provide for similar order functionality.
However, the Exchange's proposed treatment of hidden interest is not identical among market participants, particularly with respect to manual executions.
Though these functionality differences exist in the proposed implementation of hidden interest among different market participants, we note that all participants have the ability to ensure that their interest participates in manual transactions if they so choose. Floor brokers could do so by not designating their hidden interest as “Do Not Display,” while off-Floor participants could instead send their interest to the Exchange as a Minimum Display Reserve Order, which requires the display of one round lot and is eligible to participate in its entirety in manual transactions. Accordingly, we believe that NYSE's proposed rules regarding reserve functionality are not unfairly discriminatory and otherwise are consistent with the Act.
As discussed in Part II.B.5.(b) above, several key provisions of the Exchange's New Model proposal are being approved today on a pilot basis (collectively, the “Pilot provisions”). The New Model Pilot will include: (i) The changes to NYSE's priority and order allocation structure under proposed Rule 72; (ii) the dealings and responsibilities of DMMs, including the affirmative obligation to market quality, the quoting obligation, the re-entry requirements following certain transactions for the DMM's own account, and, implicitly, the elimination of the negative obligation, set forth in proposed Rule 104; and (iii) the provisions related to DMM CCS interest set forth in proposed Rule 1000.
As discussed above, we have concerns regarding certain aspects of the Exchange's proposal and are therefore approving the provisions described above on a pilot basis for a period ending October 1, 2009. Before we decide what action to take on any NYSE proposal to extend the operation of the Pilot provisions or to establish the Pilot provisions on a permanent basis, we believe that NYSE must provide data and analysis on the impact of the Pilot provisions. Specifically, we believe that to be able to take any further action on an NYSE proposal with regard to the Pilot, NYSE must provide to us on a regular, ongoing basis, statistics relating to market quality and trading activity.
The Commission intends to closely examine these statistics and other information relating to the impact of the Pilot provisions on investors and other market participants. If the Commission
Several of NYSE's proposed changes, such as the approval procedures for DMMs and DMM Units, elimination of Floor broker percentage orders, changes to the handling of Floor broker d-Quotes, and inclusion of additional Floor broker interest in OpenBook, raise policy issues that we have considered previously, and resolve such policy issues in a manner consistent with our prior approvals. The remainder of NYSE's proposed changes are technical, non-substantive changes intended, for example, to update the terminology of NYSE's existing rules to conform them to the proposed New Model, or to delete archaic rule provisions or provisions that have sunset according to their terms. We believe that these proposed changes are consistent with the Act.
We find good cause, pursuant to Section 19(b)(2) of the Act,
In Amendment No. 2, the Exchange proposes to clarify how odd-lot information will be transmitted to the DMM Unit algorithm prior to the opening. The Exchange has represented that current technical constraints in its odd-lot System require that odd-lot information be transmitted to the DMM Unit algorithm on an order-by-order basis prior to the opening. The Exchange has represented that it is currently working on modifications to its systems that would allow the transmission of odd-lot order information on an aggregated basis prior to the open. The Exchange has stated that these system changes will be effective by the third quarter of 2009, at which time odd-lot information on an order-by-order basis would no longer be required for the DMM Unit algorithm to effectively facilitate the opening. We find that the clarification with respect to the way in which odd-lot information would be transmitted to the DMM Unit algorithm is consistent with the Act
In Amendment No. 2, the Exchange has also proposed to retain the restriction currently applicable to specialists prohibiting them, their trading assistants, and others acting on their behalf from using the Display Book system to access information about Floor broker agency interest excluded from the aggregated agency interest other than for the purpose of effecting transactions that are reasonably imminent where such Floor broker agency interest information is necessary to effect such transaction. The Exchange's proposal would apply this restriction to DMMs and include information pertaining to Minimum Display Reserve Orders within the restriction. Because this restriction is designed to prevent DMMs from gleaning an informational advantage from their access to ordinarily hidden information on the Display Book that is not necessary to the performance of their obligations, we find that the retention and expansion of this provision is consistent with the Act, including Section 6(b)(5) thereunder, which requires that proposed rules promote just and equitable principles of trade, and not be designed to permit unfair discrimination between customers, issuers, brokers, and dealers.
In this amendment, the Exchange has made minor edits to its rule text (in particular, in NYSE Rules 13, 52, 72, 299A and 1000) that are technical or clarifying in nature. Finally, in Amendment No. 2, the Exchange has committed to provide us with specific metrics on an ongoing basis that relate to market quality and certain of its rules that are subject to the New Model Pilot. We believe that this data will be important in helping the Commission analyze the impact of the New Model Pilot, and in determining whether to permanently approve or modify it, if so requested by the Exchange. Therefore, we find that these proposed changes are consistent with the Act.
In Amendment No. 3, the Exchange modified the dates that the Exchange is required to provide data to the Commission, amended the implementation dates of certain rules, and clarified the implementation schedule of the New Model Pilot. Finally, in Amendment No. 3, the Exchange proposed technical changes to Rule 98 and 98 Former to replace the term “specialty stocks” with “registered security.”
The Exchange has requested that the proposed rule change, as modified by Amendment Nos. 1, 2, and 3, be approved prior to the 30th day after publication of notice of filing of Amendment Nos. 2 and 3 in the
For example, NYSE's commitment in Amendment No. 2 to provide certain data to enable us to evaluate the effects of the Pilot provisions strengthens the proposal by specifying what data the Exchange must provide and when it must be provided. Clarification of the Exchange's implementation schedule for the New Model Pilot in Amendment No. 3 strengthens the proposal by setting a deadline of ten weeks following the date of this order by which the Exchange will fully implement the Pilot provisions, and thus eliminate the DMM's advance “look” at incoming orders.
Accordingly, we find that good cause exists, consistent with Sections 6(b)(5) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning Amendment Nos. 2 and 3, including whether Amendment Nos. 2 and 3 are 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 Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the foregoing reasons, we find that the proposed rule change, as amended, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to temporarily suspend the operation of NYSE Rule 123D(3) to respond to market conditions for Thornburg Mortgage, Inc. (TMA) on September 29, 2008.
The text of the proposed rule change is available at the Exchange,
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing to temporarily suspend the operation of NYSE Rule 123D(3) with respect to the opening transactions on September 29, 2008, in the common stock and preferred Series E of Thornburg Mortgage, Inc. (“Thornburg”), a NYSE-listed company (TMA).
Thornburg is a single-family residential mortgage lender that originates, acquires, and retains investments in adjustable-rate and variable-rate mortgage assets. On September 26, 2008, the common stock of TMA underwent a one-for-10 reverse stock split pursuant to which every ten shares of common stock were combined into one share of new common stock. As part of the stock split, TMA issued new stock certificates representing the new issue.
Because Thornburg issued new stock certificates, the Exchange considers the trading of TMA on September 29, 2008 to be a new issue, notwithstanding prior trading in the stock.
To ensure a fair and orderly market, and in particular, to ensure that orders in TMA that have been submitted to the Exchange get executed, the Exchange is proposing to suspend the operation of NYSE Rule 123D(3) on September 29, 2008 for Thornburg's common stock and the Preferred Series E (“TMA securities”)
NYSE Rule 123D(3) provides that if a security would open on the Exchange at a price of $1.05 or less, trading on the Exchange shall be immediately halted because of a “Sub-penny trading” condition. The Exchange adopted Rule 123D(3) in part to be compliant with Regulation NMS.
Regulation NMS, adopted by the Securities and Exchange Commission (“SEC”) in April 2005,
For stocks priced below $1.00 per share, Regulation NMS Rule 612
The Commission's interpretation of Rule 612 requires a market that routes an order to another market in compliance with Rule 611 and receives a sub-penny execution, to accept the sub-penny execution, report that execution to the customer, and compare, clear, and settle that trade. Failure to do so constitutes a violation of Rule 611's Order Protection Rule. However, pursuant to Rule 611(b)(3) of Regulation NMS,
The Exchange adopted Rule 123D(3) to provide for a “Sub-penny trading” condition because the Exchange's trading systems did not then accommodate sub-penny executions on orders routed to better-priced protected quotations, nor could it recognize a quote disseminated by another market center if such quote had a sub-penny component and, therefore, could have inadvertently traded through better protected quotations. The rule requires the Exchange to halt trading in a security whose price was about to fall below $1.00, without delisting the security, so that the security could continue to trade on other markets that deal in bids, offers, orders or indications of interest in sub-penny prices, until the price of the security had recovered sufficiently to permit the Exchange to resume trading in minimum increments of no less than one penny or the issuer is delisted for failing to correct the price condition within the time provided under NYSE rules.
A subsequent amendment established that any orders received by the NYSE in a security subject to a “Sub-penny trading” condition would be routed to NYSE Arca, Inc. (“NYSE Arca”) and handled in accordance with the rules governing that market.
Because of reverse stock split in the common stock of Thornburg on September 26, 2008, the Exchange considered trading in that security on September 29, 2008 as a new issue. Accordingly, prior to the opening, the Exchange received pre-opening orders in the common stock. The Exchange also received pre-opening orders in the Preferred Series E of Thornburg. If the Exchange were to invoke a “Sub-penny trading” condition for those securities prior to the opening, such orders would be cancelled and would not be routed to NYSE Arca. Therefore, such orders would not be executed, potentially harming the investing public that routed such orders to the Exchange before the Exchange's announcement of a sub-penny trading halt.
The Exchange notes that while such an opening transaction would be a violation of NYSE Rule 123D(3), an execution at a sub-penny price at the opening at the Exchange would not be a violation of Regulation NMS. Accordingly, because a sub-penny execution at the opening would not constitute a violation of the Regulation NMS Rule 611 Order Protection Rule, the Exchange believes that the harm to the investing public in not having their orders in TMA securities executed at the opening outweighs any harm that may result from a violation of NYSE Rule 123D(3). The Exchange therefore proposes a one-day suspension of the operation of NYSE Rule 123D(3) that would be in effect only for the opening transactions of TMA securities on September 29, 2008.
After trading in TMA securities opened at the Exchange, the Exchange halted any further trading in TMA securities and invoked a “Sub-penny trading” condition for such securities.
The proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
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 Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–NYSE–2008–93. 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 (
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Exchange previously filed this rule proposal on September 29, 2008 for immediate effectiveness pursuant to Section 19(b)(3)(A)
As noted above, the Exchange previously submitted a proposed rule change for immediate effectiveness on September 29, 2008 that was rejected by the Commission for technical non-substantive reasons. The Commission is granting accelerated approval of this proposed rule change on a retroactive basis to September 29, 2008. The Commission finds good cause for approving this proposal before the thirtieth day after the date of publication of notice of this filing in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Department of Transportation.
Notice of Order to Show Cause (Order 2008–10–27),Dockets DOT–OST–2008–0187 and DOT–OST–2008–0188.
The Department of Transportation is directing all interested persons to show cause why it should not issue orders finding Prescott Support Company, Inc., fit, willing, and able, and awarding it certificates of public convenience and necessity to engage in interstate and foreign charter air transportation of property and mail.
Persons wishing to file objections should do so no later than.
Objections and answers to objections should be filed in Dockets DOT–OST–2008–0187 and DOT–2008–0188 and addressed to U.S. Department of Transportation Dockets, 1200 New Jersey Avenue, SE., West Building Ground Floor, Rm. W12–140, Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Mr. Scott A. Faulk, Air Carrier Fitness Division (X–56, Room W86–487), U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building, Washington, DC 20590, (202) 366–9967.
Federal Aviation Administration (FAA), DOT.
Notice of meeting.
The FAA is issuing this notice to advise the public of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee.
The meeting will be on December 10, 2008, at 10 a.m.
The meeting will take place at the Federal Aviation Administration, 800 Independence Avenue, SW.,
Gerri Robinson, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 267–9678; fax (202) 267–5075; e-mail
Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the Executive Committee of the Aviation Rulemaking Advisory Committee taking place on December 10, 2008, at the Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20519. The agenda includes:
1. Introduction of new Assistant Chairs.
2. Part 147 Working Group Report.
3. Issue Area Status Reports from Assistant Chairs.
4. Continuous Improvement (Committee Process).
5. Regulatory Agenda Discussion.
6. Rulemaking Harmonization Discussion.
7. Off-agenda remarks from other EXCOM members.
Attendance is open to the interested public but limited to the space available. The FAA will arrange teleconference service for individuals wishing to join in by teleconference if we receive notice by December 1. Arrangements to participate by teleconference can be made by contacting the person listed in the
The public must arrange by December 1 to present oral statements at the meeting. The public may present written statements to the executive committee by providing 25 copies to the Executive Director, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Pursuant to Title 49 Code of Federal Regulations (CFR) Part 235 and 49 U.S.C. 20502(a), the following railroad has petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR part 236, as detailed below.
The Canadian National Railway Company (CN) seeks approval of the proposed discontinuance and removal of an automatic block signal system from Milepost 40.2 to Milepost 41.9 on the Dresser slide fence, CN Lake Zone, Dresser Subdivision, Wisconsin. The reason for the proposed changes is that the slide fence is not required with the current restricted speed requirement. A 10 miles per hour speed restriction will extend through the entire slide area.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number ( Docket No. FRA–2008–0102) and may be submitted by any of the following methods:
•
•
•
•
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.–5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In accordance with Part 238.21 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for approval of an Alternate Standard of compliance with certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Long Island Railroad (LIRR) and Metro-North Railroad (MNCW) further identified herein as the railroads, seeks approval to amend a previously granted alternate standard to be used in accordance with the
The railroads most recent request dated September 12, 2008, states that the M7 MU locomotive tests are near their completion and the railroad requests to extend the testing beyond the 1,840 days and perform age exploration similar to the testing of electronic brake systems on more traditional freight and passenger locomotives. The M7 air brake system is integrated with the propulsion system, and a full pneumatic back up of the emergency brake application function is available through the emergency brake valve and conductors valve. The M7 utilizes various systems to monitor, diagnose, and report brake equipment functions to a centralized diagnostic system on board the equipment. At the original submission, the railroads provided required technical documentation, a Preliminary Hazard Analysis, Failure Modes and Effect Analysis, Maintainability Analysis, and has served a copy of the petition on designated representatives of its employees. A list of the names and addresses of the persons served is available at the DOT docket site contained in this notice.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
•
•
•
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Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.–5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
List of Applications Delayed more than 180 days.
In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of special permit applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
Delmer F. Billings, Director, Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH–30, 1200 New Jersey Avenue, SE., Washington, DC 20590–0001, (202) 366–4535.
1. Awaiting additional information from applicant.
2. Extensive public comment under review.
3. Application is technically complex and is of significant impact or precedent-setting and requires extensive analysis.
4. Staff review delayed by other priority issues or volume of special permit applications.
N—New application.
M—Modification request.
PM—Party to application with modification request.
Departmental Offices, Department of the Treasury.
Notice of reporting requirements.
By this Notice and in accordance with 31 CFR 129, the Department of the Treasury is informing the public that it is conducting a mandatory survey of U.S. ownership of foreign securities as of December 31, 2008. This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, this survey. Additional copies of the reporting form SHCA (2008) and instructions may be printed from the Internet at:
Alcohol and Tobacco Tax and Trade Bureau (TTB), Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the proposed or continuing information collections listed below in this notice.
We must receive your written comments on or before December 29, 2008.
You may send comments to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses:
• P.O. Box 14412, Washington, DC 20044–4412;
• 202–927–8525 (facsimile); or
•
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form or recordkeeping requirement number, and OMB number (if any) in your comment. If you submit your comment via facsimile, send no more than five 8.5 x 11 inch pages in order to ensure electronic access to our equipment.
To obtain additional information, copies of the information collection and its instructions, or copies of any comments received, contact Mary A. Wood, Alcohol and Tobacco Tax and Trade
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please not do include any confidential or inappropriate material in your comments.
We invite comments on: (a) Whether this information collection is necessary for the proper performance of the agency's functions, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the information collection's burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection's burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
Currently, we are seeking comments on the following records and forms:
Employment and Training Administration, Labor.
Final rule.
The Department of Labor (DOL or Department) is issuing this final rule to update regulations that implement the National Apprenticeship Act of 1937. 29 U.S.C. 50. DOL issued a notice of proposed rulemaking (NPRM) on December 13, 2007, outlining proposed updates to labor standards, policies and procedures for the registration, cancellation and deregistration of apprenticeship programs, apprenticeship agreements, and administration of the National Apprenticeship System. 72 FR 71020, Dec. 13, 2007.
John Ladd, Administrator, Office of Apprenticeship, 200 Constitution Avenue, NW., Room N5311, Washington, DC 20210, e-mail
This preamble is divided into three sections. Section I provides general background information on the development of the final rule. Section II discusses the comments and regulatory changes in the final rule. Section III covers the administrative requirements for this final rule as mandated by statute and executive order.
On December 13, 2007, the Department published an NPRM (72 FR 71020, Dec. 13, 2007) proposing to revise the regulations that implement the National Apprenticeship Act of 1937. We initially invited comments for a 60-day period through February 12, 2008. Several commenters submitted requests for an extension of the comment period. In response, we published a notice (73 FR 7693, Feb. 11, 2008) extending the comment period by 30 days. The comment period closed on March 12, 2008.
Unique, individual comments received during the comment period following publication of the NPRM have been posted on
The National Apprenticeship Act of 1937 authorized DOL to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging their inclusion in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, and to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship.
The Department promulgated regulations for implementing the National Apprenticeship Act in 1977. The regulations govern the National Apprenticeship System in which the Department, State agencies, industry leaders, employers, employer associations, labor-management organizations (primarily consisting of labor organizations and employers), and educational institutions collaborate, develop, operate, and oversee apprenticeship programs that draw on the skills and knowledge that business and industry needs from its employees, to ensure that apprentices develop up-to-date and relevant skills. In the 30 years since, the Department and its partners in the National Apprenticeship System have recognized that technological advances, demographic changes, and globalization have significantly altered the context in which apprenticeship programs operate. The Department and its partners recognize that for registered apprenticeship to keep pace with these changes, and to continue apprenticeship's vital role in developing a skilled, competitive workforce, the regulatory framework for registration of apprenticeship programs and administration of the National Apprenticeship System must be updated. For example, many program sponsors have requested more flexibility in the requirements for provision of related technical instruction. Other program sponsors, particularly in industries that have not traditionally used registered apprenticeship, have sought flexibility in the requirements for length of time in the on-the-job learning component so that apprentices could progress toward program completion based on demonstration of competencies. The Government Accountability Office's August 2005 report, “Registered Apprenticeship Programs: Labor Can Better Use Data to Target Oversight,” and the Office of Management and Budget's Program Assessment Rating Tool (PART) review of Registered Apprenticeship, have emphasized the need to improve program quality and accountability in the National Apprenticeship System.
The December 13, 2007 NPRM proposed to revise 29 CFR part 29 based on these developments and in consultation with the Advisory Committee on Apprenticeship (ACA), the National Association of State and Territorial Apprenticeship Directors (NASTAD), and State Apprenticeship Agencies. This final rule implements changes to 29 CFR part 29 that will increase flexibility, enhance program quality and accountability, and promote apprenticeship opportunity in the 21st century, while continuing to safeguard the welfare of apprentices. In addition to the specific changes discussed below, we have made minor editorial changes throughout the final rule.
The final rule takes effect on December 29, 2008. However, States will have up to a 2-year period in which to make the changes to State law, regulation and/or policy needed to come into compliance with this final rule before having to apply for continued recognition under § 29.13(c). The Department will work with States to make as seamless as possible the transition from State laws recognized under current regulations to State laws recognized under the final rule.
The Department received 2,660 submissions commenting on the NPRM by the close of the comment period. All comments were carefully reviewed. We found 2,437 to be cover letters, form letters or duplicates, a preponderance of which were from members of a single employer association supporting the proposed regulatory changes. Of the 223 non-duplicative comments, the majority were from labor organizations and employer associations that sponsor registered apprenticeship programs, and state government entities. All relevant comments are discussed below. In response to these comments we made several substantive changes which are discussed below.
Twenty-five commenters expressed general support for the NPRM and agreed that the proposed changes will update, improve, and advance the mission of the National Apprenticeship System to meet the needs of today's industry and economy. Other commenters generally commended the Department for improving and
Twenty-five commenters generally preferred the current regulatory framework for registered apprenticeship over the proposed changes, stating that the current regulations work well and that the proposed changes are unnecessary. We also received comments indicating disapproval of the proposed changes due to concerns over the potential impact on State agencies. Additional commenters suggested that the proposed changes may impact certain apprenticeship programs more than others. A few commenters disapproved of the proposed changes due to the potential implications for apprentices.
A few commenters agreed with the addition to the Purpose and Scope of the phrase “promote apprenticeship opportunity.” They noted that this addition is a fundamental objective of the National Apprenticeship Act and should be expressly included in DOL regulations.
Section 29.2 clarifies and redesignates existing definitions and establishes new definitions for certain terms used in the registration of apprenticeship programs and in the ongoing operations of the National Apprenticeship System. We proposed to carry forward the following existing definitions for terms defined in the original regulations: “administrator,” “apprentice,” “apprenticeship program,” “cancellation,” “Department,” “employer,” “Federal purposes,” “registration of an apprenticeship agreement,” “registration of an apprenticeship program,” “sponsor,” and “State.” Accordingly, we did not invite comments on these terms. Similarly, the final rule carries forward the definitions for these terms, as contained in the existing regulations. Of the proposed new and amended definitions, we did not receive comments on the definitions for “Office of Apprenticeship,” “Registration Agency,” “technical assistance,” and “State office.” We made no changes to the proposed definitions of these terms.
We received one comment about the definitions in general. The commenter argued that the definitions in § 29.2 would require State Apprenticeship Agencies to control and direct State Apprenticeship Councils, thus reversing traditional authority without any clear explanation of why the Department wants to change the council-agency relationship. The commenter also asserted that the definitions are an unauthorized intrusion on a State's legislative rights and priorities.
Five commenters addressed the proposed definition of “apprenticeship committee,” which clarified that an apprenticeship agreement is between an apprentice and either the apprentice's program sponsor, or an apprenticeship committee acting as an agent for the program sponsor. One commenter supported the definition as proposed. Other commenters noted that use of the term “worker” may be confusing in the parenthetical notation in paragraph (b), which defines a non-joint committee as “a unilateral or group non-joint (may include workers) committee [which] has employer representatives but does not have a bona fide collective bargaining agent as a participant.” The commenter suggested that for consistency, the term “employee” should replace the term “worker.” Another commenter suggested that the incumbent workforce of a program sponsor is a stakeholder that should be included in the definition of “apprenticeship committee,” regardless of the status of a collective bargaining agreement in a program sponsor's workplace. Another commenter recommended removing the terms “non-joint,” in paragraph (b), and “joint” in paragraph (a), which specifies that “a joint committee is composed of equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent.” The commenter suggested the phrase, “unilateral or group, which shall include equal numbers from employer(s) and employees.” Another commenter suggested that the proposed change in which an apprenticeship committee acts
Three commenters expressed concern over the potential effect of paragraph (a) of the proposed definition of “certification or certificate” on individual programs that are currently using State-approved industry standards. Paragraph (a) provides that in order to receive certification from the Office of Apprenticeship, national guidelines for apprenticeship standards which are developed by a national committee or organization for policy or guideline use by local affiliates must conform to the standards of apprenticeship set forth in § 29.5. Commenters stated that standards approved by State Apprenticeship Agencies are more trade-specific and protective of apprentices' safety than any proposed national guidelines for apprenticeship standards. They also stated that it would be problematic to allow an outside “national committee or organization” to dictate the direction of individual programs and concluded that national guidelines for apprenticeship standards will “erode apprenticeship standards by trade, and blend multiple trades into one standard.” In addition, a few commenters questioned who would set the standards used in national guidelines for apprenticeship standards.
Sixteen commenters weighed in on the proposed definition of “competency,” which means “the attainment of manual or technical skills and knowledge, as specified by an occupational standard.” Many expressed apprehension over the implications of the definition, suggesting that it does not clearly articulate how competency will be measured (e.g., on a set of validated industry and trade-specific standards). Others noted that the definition does not mandate specific types of training (e.g., on-the-job, classroom) that are often critical to meet industry accepted guidelines for journey-level status. Finally, others raised concerns that with this definition, journeyworker status will be determined in a subjective manner, without strict standards for objective program administration.
Regarding concerns that the definition does not require specific types of training and that journeyworker status will be determined in a subjective manner, we have concluded that apprenticeship programs need flexibility when setting the requirements for training and the attainment of journeyworker status, so that the program standards can take into account the circumstances of particular occupations and programs. Additionally, we note that the requirement for an apprenticeable occupation to include on-the-job learning as specified in § 29.4(c), and the requirements for apprenticeship program standards to include on-the-job learning as specified in § 29.5(b)(2) and related instruction specified in § 29.5(b)(4), address concerns regarding specific training. Therefore, we do not adopt the comments that favor a more prescriptive approach to those matters in the definition of “competency.”
Several commenters requested a formal definition of the term “completion rate,” stating that further guidance was necessary for evaluating program performance based on a completion rate.
Although commenters did not provide any comments specific to the proposed definition for “electronic media,” many raised concerns that the use of electronic media in the proposed revision to related instruction could supplant, reduce, or eliminate an apprentice's interface with an instructor in a lab or classroom setting. They emphasized the importance of classroom and hands-on learning for the successful acquisition of skills and knowledge necessary for completion of an apprenticeship program.
Some commenters suggested that the proposed definition for “interim credential,” which is “a credential issued by the Registration Agency, upon the request of the sponsor, as certification of competency attainment by an apprentice,” does not sufficiently include requirements for the recipient to meet an objective, external standard associated with the subject matter for which an interim credential is issued. Others asserted that the definition of “interim credential” could diminish the meaning and significance of the status of “journeyworker”, and that the use of interim credentials in the National Apprenticeship System may serve as a disincentive to completing an apprenticeship program.
Issuance of interim credentials will be determined by the program sponsor's choice of approach for an apprentice's progression through an apprenticeship program: Competency-based, time-based, or hybrid. Program sponsors must identify and define all interim credentials in the program standards that are registered with the Registration Agency. Interim credentials may be issued only for industry-recognized components of an apprenticeable occupation. Therefore, if an apprenticeship program's standards do not include provisions for issuance of interim credentials for specific components of an apprenticeable occupation, the Registration Agency with which the program is registered may not issue interim credentials to apprentices registered with that program.
We reiterate that interim credentials are issued by the Registration Agency, upon request of the appropriate sponsor, as certification of an apprentice's attainment of competency. Further, the regulations do not require program sponsors to include interim credentials in their program standards, nor do they require sponsors to request that a Registration Agency issue interim credentials to apprentices registered in their apprenticeship programs. The Department also recognizes that some Registration Agencies may find the issuance of interim credentials to be unduly burdensome and beyond their capabilities. Therefore, Registration Agencies, other than the Office of Apprenticeship, may opt not to offer this additional service.
We have concluded that the revised regulatory framework does not detract from the overall goal of the National Apprenticeship System to support and enable apprentices to complete an apprenticeship program. Through the authorization of interim credentials, the National Apprenticeship System recognizes that some industries and occupations are more amenable to an incremental recognition of an apprentice's increasing skills, knowledge, and abilities. In such industries the use of interim credentials can, thereby, afford multiple opportunities for apprentices to grow and expand their knowledge and their capacity to meet current, new, and emerging industry advances. Use of interim credentials also recognizes the fact that not all apprentices will complete their apprenticeship programs and offers opportunities for recognition of what these individuals have learned. Therefore, interim credentials will also enable apprentices to obtain portable credentials commensurate with the skills and competencies acquired and demonstrated throughout an apprenticeship. Notwithstanding the value of interim credentials, the issuance of a certificate of completion of apprenticeship, and the associated “journeyworker” status, remains the ultimate goal for the National Apprenticeship System.
Ten comments were submitted on the proposed definition of “journeyworker.” One commenter requested inserting the word “abilities” to the definition to read “a worker who has attained a level of skills, abilities, and competencies recognized within an industry,” asserting that use of the term “abilities” provided a more thorough recognition of a journeyworker's qualifications. Multiple commenters recommended using industry standard definitions for “journeyworker,” asserting that permitting employers to recognize other definitions would leave the National Apprenticeship System open to abuse. Others asserted that by expanding the term to refer to a mentor, technician, specialist or other skilled worker gives the employer the authority to determine journeyworker status. One commenter argued for retention of the term “journeyman,” because in the traditional sense it is not and has not been gender-specific, and that it refers to rank or status in a skilled trade.
Several comments on proposed revisions to § 29.3(g) and § 29.3(h) regarding provisional registration indicate that the proposed definition of “provisional registration” did not adequately specify the process by which a provisionally registered program would receive permanent registration, continuance of provisional registration, or rescission of registration.
In their discussion of program performance standards in proposed § 29.6, some commenters recommended establishing a clear definition of “quality assurance assessment.”
A commenter asserted that by expanding the definition of “Registration Agency” to include registration of apprentices and programs, providing technical assistance, and conducting reviews for compliance with parts 29 and 30, and quality assurance assessments, the Department is attempting to retain the services of a State Apprenticeship Agency without Federal funding or State legislative approval.
Several commenters noted that the proposed separation of apprenticeship's theoretical instruction into two terms, “related technical instruction” and “supplemental instruction,” creates undue complications. On the other hand, a commenter praised the addition of “supplemental instruction,” stating that such instruction will increase opportunities for learning, as well as provide additional opportunities to create and ensure equitable classroom and worksite environments. Other commenters asserted that “related instruction” should not be limited to “core” requirements. Further, the commenters noted that safety processes like CPR/first-aid training may be part of a related training for many apprenticeable occupations and expressed concern that valuable training would be marginalized.
We received two comments on the definition of “State Apprenticeship Agency.” One commenter stated that the proposed definition of “State Apprenticeship Agency” would allow for the State Apprenticeship Agency to assume the powers of the State Apprenticeship Council. The other commenter sought clarification on the proposed definition.
Two commenters questioned if the definition of “State Apprenticeship Council” would mean that the Council would only serve an advisory role rather than a regulatory role.
Several commenters noted that the proposed revisions regarding apprentice transfers in § 29.5(b) and the proposed new definition of “transfer” in § 29.2 raise questions about approval and consent for transfer and the potential impact on apprenticeship program sponsors. Several commenters questioned the need for apprentices to initiate requests for transfers, asserting that such latitude could enable apprentices to transfer registration without regard to negative impact on program sponsors. Other commenters suggested that program sponsors could use the provisions of this definition to transfer an apprentice to another program or to another employer without the apprentice's consent, thereby potentially negatively impacting the safety and welfare of the apprentice.
This section addresses the criteria and process used by a Registration Agency to register apprenticeship programs. In general, the comments we received supported the proposed changes which were designed to ensure high quality for registered apprenticeship programs, assist program sponsors through early intervention and technical assistance, and foster closer working relationships between the apprenticeship sponsors and Registration Agencies.
Several commenters raised concerns about the adequacy of the resources available to the DOL and the Office of Apprenticeship for follow through requirements pertaining to provisional registration. Two commenters asked who would pay for technical assistance provided to new programs.
Proposed § 29.3(g) is a new provision which establishes provisional approval for 1 year of new programs that the Registration Agency preliminarily determines comply with part 29. Most commenters supported the concept of provisional registration for new programs, but expressed concern that DOL currently appears to be understaffed and would not have adequate resources to perform the reviews required at the end of a program's first year to determine if the program should receive full recognition. Some commenters asserted that the determination to grant provisional program approval, regardless of length, belongs to State Apprenticeship Agencies.
We recognize that adequate resources are required to successfully address the additional workload associated with provisional registration procedures. Accordingly, we are realigning resources to provide these services in States where the Office of Apprenticeship serves as the Registration Agency. As discussed below under § 29.13, Recognition of State Apprenticeship Agencies, States seeking registration authority for Federal purposes must provide sufficient resources to perform all the functions of a Registration Agency. We have revised § 29.3(g) to clarify that the Registration Agency is responsible for reviewing programs for quality and conformity with the requirements of this part at the end of the first year after registration. A program that conforms to the requirements of part 29 may be permanently approved, or the provisional approval may be extended through the end of the first training cycle. A program not in operation or not conforming to the regulations during the provisional approval period must be recommended for deregistration procedures.
Proposed § 29.3(h) provides that a satisfactory review at the end of the first full training cycle will result in removal of provisional approval, and provides that subsequent reviews will be conducted no less frequently than on a five-year cycle. A few commenters questioned how this five-year cycle of program reviews, which generally
A few commenters questioned the requirement in § 29.3(i) for a Registration Agency to make a determination on whether to approve sponsor proposals or applications for modifications to registered programs within 45 days from the date of receipt. Existing regulations simply provide for “prompt” submission of requests for modification and set no timeframe for a Registration Agency and provide no guidance on what the Registration Agency must do to process the application or modification. Commenters asserted that 45 days does not provide sufficient time for review and comment. In particular, this proposed requirement would not align with schedules for State Apprenticeship Councils that only meet quarterly or every 90 days, to review proposals and modifications for registered apprenticeship programs. Other commenters did support the proposed 45-day timeframe for the Registration Agency to make a determination whether to approve such submissions.
Section 29.4 revises the criteria for determining when an occupation qualifies as apprenticeable. The revisions proposed in the NPRM align § 29.4 with changes to ways to progress through an apprenticeship program, as discussed further in the discussion of § 29.5(b)(2). Some commenters raised questions and concerns about deletion of the term “skilled trade” and inconsistency between an apprenticeable occupation's requirement for hours of on-the-job learning and the competency-based approach for completion of an apprenticeship program, provided by final § 29.5(b)(2).
A few commenters raised concerns about the deletion of the term “skilled trade” in describing an apprenticeable occupation, asserting that the term is recognized nationally in the construction industry, and is commonly used.
Some commenters suggested that requiring at least 2,000 hours of on-the-job work experience in § 29.4(c) conflicts with the competency-based approach outlined in § 29.5(b)(2).
The comments on this section have brought to light an inconsistent and interchangeable use of the terms “on-the-job training” and “work experience” throughout the proposed rule to refer to the on-the-job learning component of registered apprenticeship, as required in § 29.4(c) and § 29.5(b)(2). We have replaced the terms “on-the-job training” and “on-the-job work experience” with the term “on-the-job learning” throughout the final rule.
Proposed changes to § 29.5 regarding standards of apprenticeship received many comments; over 132 comments pertained to the use of a competency-based approach to progression through an apprenticeship. Other significant areas of interest centered on related instruction, apprentice instructor certification, advanced standing or credit, transfers, interim credentials, and cancellation rate.
Section 29.5(b)(2), which is based on the existing requirement that on-the-job learning must be consistent with industry practice, presents three methods by which an individual apprentice may progress toward the industry standard for work experience. These methods are: (i) A time-based approach involving completion of at least 2,000 of hours of on-the-job work experience; (ii) a competency-based approach involving successful demonstration of acquired skills and knowledge by an apprentice, as verified by the program sponsor, plus an on-the-job learning component; and (iii) a hybrid approach involving completion of a specified minimum number of hours plus the successful demonstration of competency.
Many commenters raised questions and asked for clarification about the proposed three approaches. Many commenters questioned whether the competency-based model would require on-the-job learning. Most commenters expressed concern that the proposed terms were not adequately defined, that industries should be equipped to monitor validity and achieve standardization, and that existing
We agree that clarifying language is required for all three approaches to ensure that on-the-job learning is a required component of all apprenticeship programs. Paragraph (ii) of § 29.5(b)(2) has been revised to include additional language specifying that programs using the competency-based approach must still require an apprentice to complete the on-the-job learning component of registered apprenticeship. We emphasize that on-the-job learning remains the primary method by which apprentices gain the competencies necessary for successful completion of a competency-based or hybrid apprenticeship program. An apprenticeship program's use of a competency-based or hybrid approach does not exempt apprentices from participating in the fundamental elements of registered apprenticeship: on-the-job learning and related instruction.
The Office of Apprenticeship guidance on competency-based and hybrid apprenticeship in Circular 2005–03 describes how program sponsors and apprentices can comply with the requirements for minimum on-the-job learning for each major work process using the competency-based or hybrid approach outlined in § 29.5(b)(2). Additionally, materials available on the CareerOneStop Web site (
Neither the proposed nor the final rule requires program sponsors or Registration Agencies to adopt all three approaches. A new paragraph (iv) has been added to § 29.5(b)(2) to clarify that the determination of the appropriate approach for the program standards is made by the program sponsor, subject to approval by the Registration Agency of the determination as appropriate to the apprenticeable occupation for which the program standards are registered.
We seek to provide a variety of industries with greater flexibility and options for approaches to addressing their talent-development needs through apprenticeship. As discussed in the NPRM, business, industry, and labor have requested a more flexible and accountable National Apprenticeship System that meets their workforce development needs. Through pilot programs in which sponsors measured apprentices' attainment of certain skills and competencies rather than using the traditional, time-based approach, many new business, labor, and industry partners in National Apprenticeship System have found that competency-based apprenticeship provides the flexibility and accountability necessary to use registered apprenticeship in their respective industries and occupations. Final § 29.5(b)(2) provides greater flexibility for registered apprenticeship programs to address career development plans of registered apprentices. As we emphasized in the NPRM, the three approaches reflect the experience of the traditional building and construction trades and industrial sectors' use of time-based apprenticeship, while addressing the needs of new and emerging industries seeking to participate in the National Apprenticeship System. Therefore, we anticipate that program sponsors will use the approach that best meets the needs of their particular industry. We do not intend to discourage the use of the time-based approach in those occupations in which it has proven successful nor for any new occupations that lend themselves to that approach.
The majority of comments on provisions for related and supplemental instruction stated that training through the use of electronic media as proposed in § 29.5(b)(4) should not supplant or replace an apprentice's ongoing, face-to-face interaction and classroom time with an instructor. Some commenters suggested that the Department clarify that electronic media can be used to supplement classroom instruction, but that it is not a substitute for instructor/apprentice interaction. Many suggested that electronic media should not be allowed as the sole method for related technical instruction, as it would be open to widespread misuse and mismanagement. Others suggested that the regulations require that a majority of, or a significant portion of related instruction should be provided through in-person instruction. Other commenters supported the use of electronic media in related instruction, because it enhances flexibility in registered apprenticeship and recognizes new training methods and technologies.
Proposed requirements for an apprenticeship instructor would be similar to States' requirements such as meeting the State Department of Education's requirements for a vocational-technical instructor, and/or being recognized as a subject matter expert, and would require that instructors have training in teaching techniques and adult learning styles. A few commenters generally supported the proposed qualifications for apprenticeship instructors in § 29.5(b)(4) because they would raise the quality of apprenticeship instruction. Some commenters stated the proposed changes did not adequately define “subject matter expert” or provide guidance on how an apprenticeship program or Registration Agency should make a determination of who may be considered a “subject matter expert.” Others agreed with the concept of improving the quality of apprenticeship instructors, but stated the proposed changes would be overly restrictive by requiring all instructors to be certified as having met the state vocational education instructor requirements. Other commenters questioned whether journeyworkers would have to be certified by the State vocational education entity in order to teach the related instruction component of registered apprenticeship. Some commenters asserted that the proposed text would eliminate the use of journeyworkers as subject matter experts or technical experts. Some commenters supported the proposed requirement in § 29.5(b)(4) that apprenticeship instructors have training in teaching techniques and adult learning styles. Others requested clarification on this requirement.
Seventeen commenters expressed concern that the length of the probationary period was not defined in proposed § 29.5(b)(19), which provided simply that cancellations during an apprentice's probationary period will not adversely impact the sponsor's completion rate. The completion rate is a new factor for evaluation of program performance proposed in §§ 29.6(b) and (c). Several commenters suggested defining a specific “not to exceed” time for probationary periods, such as 15 percent or 20 percent of a program's length. Many commenters were concerned that without a time limit on the probationary period, the proposed regulations could permit an apprenticeship program to leave apprentices in probationary status for an extended period of time in an effort to improve the program's performance ratings or conceal the program's deficiencies.
Two commenters discussed § 29.5(b)(12), which provides for granting an apprentice advanced standing or credit to take into account demonstrated competencies. One commenter asserted that the proposed rule could reduce on-the-job learning, possibly compromising safety and health. The other commenter expressed concerns about how sponsors would evaluate competencies.
Twenty-seven commenters raised questions about the proposed changes to § 29.5(b)(13) which require program sponsors or committees to: Provide the transferring apprentice with a transcript of related training and on-the-job learning completed; permit transfers to either the same or a related occupation; allow an apprentice, the employer or the program sponsor to initiate the transfer; and stipulate that a transfer must occur without adverse impact on the apprentice, the employer, or the program.
Many commenters raised concerns about how a transfer would be initiated and the process for executing the transaction. Commenters questioned whether the proposed provisions would permit an apprentice to unilaterally transfer from one program to another without the consent of program sponsors. Two commenters suggested that transfers should be amicable for all sides and that transferring apprentices should be tested to ensure proper placement in the new apprenticeship program. Other commenters asserted that an involuntary transfer could adversely impact the affected apprentice and the affected apprenticeship program sponsors or committees. Another commenter questioned whether the proposed rule requires acceptance of transfers. Three commenters stated that modifying this section of the rule should be solely a State and sponsor responsibility.
We disagree that modifications to § 29.5(b)(13) should be solely a State and sponsor responsibility. The regulatory framework for the National Apprenticeship System, established by this part, must address the issue of transfer to ensure that all apprentices regardless of geographic location and program sponsor have equal and uniform access to the same provisions for transfer. However, procedural and administrative issues associated with the transfer of apprentices, such as testing and determination of appropriate placement of the apprentice and the means of reaching agreement among affected parties, are more appropriately addressed in policy guidance to be issued by the Office of Apprenticeship, rather than in the regulatory framework for the National Apprenticeship System. Accordingly, the Office of Apprenticeship will consult with apprenticeship program sponsors and State Apprenticeship Agencies to develop and issue guidance that effectively addresses these concerns.
Several commenters said provisions in proposed § 29.5(b)(13)(ii) which would permit transfer to a related occupation or within the same occupation would not benefit apprentices, especially if a program sponsor or employer were to shift apprentices between jobs and tasks without ensuring proper skills and knowledge development. Three commenters suggested that transfers must be within the same occupation or trade. One commenter noted that many apprenticeship programs in the building and construction industries have provisions in their standards for transfer of apprentices to other programs within their occupations.
Other commenters suggested that provisions in proposed § 29.5(b)(13)(i) requiring that the committee or program provide a transferring apprentice a transcript of related instruction and on-the-job learning would encourage recruitment between apprenticeship programs instead of focusing on greater outreach.
In addition, the final rule continues to serve the purpose of existing § 29.5(b)(13), which allows an employer to transfer its training obligation to another employer, with the consent of the apprentice and the apprenticeship committee or program sponsor. As discussed above, the Department does not foresee that transfers of apprenticeship registration from one program to another or from one employer to another would occur frequently or with regularity. The intent of this provision is to provide flexibility for an apprentice to continue his or her apprenticeship in changing circumstances.
Changes to proposed § 29.5(b)(15) would add a provision for issuance of an interim credential in recognition that an apprentices has attained skills or satisfied certain requirements as he or she progresses through a competency-based or hybrid apprenticeship program. The proposed revision also carries forward the existing requirement for issuance of a certificate of completion in recognition of successful completion of an apprenticeship program. We received 93 comments on proposed § 29.5(b)(15). Some commenters expressed support for
The proposed provisions for interim credentials were not intended to require all program sponsors to issue interim credentials, nor even to require that all sponsors choosing to use the competency-based approach or hybrid approach issue interim credentials. Final § 29.5(b)(16) clarifies that program standards for apprenticeship program sponsors that choose to use the competency-based or the hybrid approach for completion of an apprenticeship and that choose to issue interim credentials must clearly identify the interim credentials, demonstrate how these credentials link to the components of the apprenticeable occupations, and establish the process for assessing an individual apprentice's demonstration of competency associated with the particular interim credential. Further, interim credentials must only be issued for recognized components of an apprenticeable occupation, thereby linking interim credentials specifically to the knowledge, skills, and abilities associated with those components of the apprenticeable occupation.
Commenters expressed concern that the use of interim credentials would redefine what journeyworker status means. Over twenty commenters asserted that provisions for interim credentials would diminish the value of or deter trainees from obtaining journeyworker status. Other commenters misinterpreted the provisions for interim credentials as permitting program sponsors to reduce requirements for on-the-job learning necessary to achieve particular skills and abilities, thereby producing inadequately trained journeyworkers. Some commenters stated that these provisions could weaken the workforce by producing workers with specialized, rather than comprehensive, training for parts of an occupation. Other commenters asserted that ultimately, issuance of interim credentials could lead to a segment of the workforce working for lower wages, with less job security.
As discussed above in the discussion of the definition of interim credentials, the issuance of a certificate of completion of apprenticeship, and the associated “journeyworker” level status, remain the ultimate goal for the National Apprenticeship System. Interim credentials do not indicate that the apprentice has met all of the requirements of the apprenticeship, nor that he or she has successfully mastered the full range of skills and competencies required for an occupation. The certificate of completion is the only credential that properly conveys that the apprentice has successfully met the requirements of the apprenticeship program. Therefore, designation of “journeyworker” and the associated status will not be affected by use of interim credentials. However, in recognition of stakeholders concerns over the impact of interim credentials, the Department will establish a process to assess implementation of interim credentials. Initially, Registration Agencies and program sponsors will use the quality assurance assessment process to identify and assess any impact of interim credentials on program operations and outcomes. Following consultation with stakeholders of the National Apprenticeship System, the Office of Apprenticeship intends to issue policy guidance on the review of interim credentials.
Thirty commenters expressed concern about potential negative impacts for the National Apprenticeship System if interim credentials are based on sponsor standards instead of industry standards. These commenters asserted that national standards are necessary so that the credential can be portable and meaningful to employers across different regions.
Numerous commenters suggested that provisions on interim credentials would place additional resource (e.g., time and documentation) burdens on Registration Agencies with no apparent provisions for verification of the credential's validity. Some commenters recommended that the use of interim credentials should not be mandated or should be left to the discretion of States to mandate.
The Department acknowledges that instituting a process for the issuance of interim credentials would constitute an additional burden for those State Apprenticeship Agencies that currently do not issue such certifications. Based on comments expressing concern about potential time and documentation burdens, we agree that State Apprenticeship Agencies should not be required to issue interim credentials as a pre-condition for recognition. Accordingly, while recognized State Apprenticeship Agencies may choose to issue interim credentials using their own procedures in compliance with this part, the final rule does not require them to do so. However, in order to maintain uniformity across the National Apprenticeship System and further apprentices' progression through apprenticeship, the Department has determined that opportunities must be available nationwide for program sponsors to register program standards that use a competency-based or hybrid approach for completion of apprenticeship and that issue interim credentials. Therefore, the Office of Apprenticeship will offer to issue interim credentials, nationwide, where the prerequisites are met. If a recognized State Apprenticeship Agency registers program standards that use a competency-based or hybrid approach, but does not issue interim credentials, the program sponsor may request that the Office of Apprenticeship issue interim credentials to apprentices who have successfully met the requirements of an interim credential established in the program standards for their respective apprenticeship programs. If a recognized State Apprenticeship Agency does not register program standards that use a competency-based or hybrid approach, then a program sponsor can petition to register the apprenticeship standards with the Office of Apprenticeship for Federal purposes, and the Office of Apprenticeship will issue interim credentials, when prerequisites are met.
Two commenters maintained that mandating the use of interim credentials would cause apprenticeship programs to incur the enormous costs of developing testing to determine whether apprentices are entitled to interim credentials.
Seventeen commenters expressed concern that the length of the probationary period was not defined in proposed § 29.5(b)(19), which provided simply that cancellations during an apprentice's probationary period will not adversely impact the sponsor's completion rate. The completion rate is a new factor for evaluation of program performance proposed in §§ 29.6(b) and (c). Several commenters suggested defining a specific “not to exceed” time for probationary periods, such as 15 percent or 20 percent of a program's length. Many commenters were concerned that without a time limit on the probationary period, the proposed regulations could permit an apprenticeship program to leave apprentices in probationary status for an extended period of time in an effort to improve the program's performance ratings or conceal the program's deficiencies.
Twelve commenters believed that not counting cancellations during the probationary period, or allowing programs to adjust the length of the probationary period, could artificially improve completion rates. Others felt that cancellation rates during the probationary period, if properly categorized, can be used to evaluate program performance. Some commenters stated that it would be important to monitor programs that have a high rate of attrition during probationary period to check for abuses. Others advocated that only cancellations that were due to failure to provide training in accordance with the sponsor's approved standards should be counted in completion rates, asserting that the proposed rule's inclusion of cancellation rates after the probationary period in calculation of completion rates did not distinguish between those cancellations that were the fault of the program and those over which the program has little if any control.
We also agree that without a limit to the probationary period, the regulation could allow the information used in calculating completion rates to be skewed, thereby impacting the evaluation of program performance. In recognition of the concerns of the commenters, we have added language to § 29.5(b)(8) limiting the length of the probationary period. Historically, National Guideline for Apprenticeship Standards recognized by the Office of Apprenticeship have used 25 percent of the length of the program as the benchmark. Accordingly, the final rule provides that the probationary period cannot exceed 25 percent of the length of the program, or one year, whichever is shorter.
We disagree that only cancellations due to the failure to provide training in accordance with the sponsor's approved standards should be counted in completion rates. Program sponsors' policies and administrative procedures such as not providing steady work experience reduce the apprentices' opportunities to earn wages, and thereby can impact an apprentice's ability to remain registered in a program. Therefore, analysis of a program's cancellations rates can provide important indications of the need to further evaluate a program's operations, policies, and procedures, and if needed provide technical assistance. As discussed further in the discussion of program performance standards, we emphasize that a Registration Agency's evaluation of
Section 29.6 is a new section that focuses on the quality and performance of registered apprenticeship programs. A few commenters generally supported the proposed changes to this section, but questioned the Office of Apprenticeship's ability to successfully evaluate all of the registered programs, given current budget and staffing levels.
Section 29.6(a) provides that every program must have at least one registered apprentice in order to be designated and retain designation as a registered apprenticeship program for Federal purposes. Commenters observed concern that there may be times when a program is between training cycles and has no apprentices for a short period of time. Other commenters asserted that this provision does not adequately address apprenticeship programs with one or a few apprentices who never graduate. Some commenters suggested establishing time frames for determining if programs have an active apprentice or apprentices.
With regard to commenters assertion that this provision does not adequately address programs that never graduate an apprentice, the requirements set forth in 29.6(b) will hold those programs accountable.
Twenty-eight comments addressed § 29.6(b), which provides a non-exclusive list of tools and factors that must be considered in evaluating the performance of a registered apprenticeship program. Nine commenters expressed concern that there is no proposed definition of “quality assurance assessment,” one of the tools and factors to be considered in evaluating performance. Many requested a definition of “completion rate.” Other commenters requested that the Department clarify the intended purpose of each of the performance tools and factors and how they are to be used. One commenter suggested adding a requirement that the “tools and factors” be consistent with Federal standards and goals so that States could not add factors that conflicted with this part, 29 CFR part 30, or the National Apprenticeship Act.
The three performance factors specifically required are quality assurance assessments, Equal Employment Opportunity Compliance Reviews, and completion rates. As discussed above in the discussion of the definitions in § 29.2, quality assurance assessments are comprehensive reviews conducted by a Registration Agency to determine if an apprenticeship program is addressing its program standards and meeting the requirements of this part. Equal Employment Opportunity Compliance Reviews are required under part 30. Data on a program's completion rates are intended to provide Registration Agencies with information useful to support technical assistance efforts to improve program performance. We emphasize that any additional tools and factors used by Registration Agencies in evaluating program performance must adhere to the goals and policies of the Department articulated in this part and in guidance issued by the Office of Apprenticeship.
A Registration Agency's use of completion rates in evaluating program performance, provided by proposed §§ 29.6(b) and (c), received mixed reviews. One commenter asserted that the proposed rule will likely result in an annual effect on the economy of $100 million or more, and therefore the proposed rule qualifies as a major rule under Executive Order 12866 and the Small Business Regulatory Enforcement Act (SBREFA). The commenter asserted that State and local governments are including bid provisions that require contractors to have apprentices who have successfully completed an apprenticeship program approved by the Department or a recognized State Apprenticeship Agency as a condition of bidding and participating on a project. The commenter asserted that such bid requirements will likely foreclose unilateral apprenticeship program sponsors from being able to bid on, and be awarded State and local construction projects, which will likely have an annual adverse impact on the economy exceeding $100 million. Although the comment did not mention a particular section of the rule, we have determined that the commenter's estimate of anticipated impact was primarily based on the expected costs of compliance with §§ 29.6 (b) and (c). The commenter recommended that the Department withdraw the proposed provisions for completion rates, so that the Office of Apprenticeship can conduct further study and discussion with interested stakeholders.
Many commenters noted that evaluating apprenticeship programs on the basis of completion rates would align the National Apprenticeship System with other Federal education programs that make eligibility for receipt of Federal funding dependent, in
Some commenters opposed provisions of proposed § 29.6(c) that provide for evaluation of completion rates of programs located in the same geographical areas, and as necessary, further review and provision of technical assistance to maintain and improve program performance. One commenter asserted that it was onerous and short-sighted to compare programs, rather than individually evaluate programs based on their merits. Another commenter characterized this particular proposed provision as highly subjective and ambiguous, suggesting that the standard should set a minimum completion rate above which a program's completion rate will not be deemed a negative factor. Another remarked on the absence of firm standards in this proposed regulation. Others asserted that this proposed requirement would favor union-operated programs and do nothing to improve apprenticeship programs.
We agree that comparing like programs, particularly when there may only be one comparable program in a geographical are, may not be a feasible, effective approach for the evaluation of completion rates. We also agree with the suggestion to establish a minimum completion rate above which a program's completion rate will not be deemed a negative factor. We have determined that the national average for apprenticeship completions would be a reasonable benchmark to use in evaluating the performance of registered apprenticeship programs for purposes of identifying programs in need of technical assistance. Accordingly, we have revised § 29.6(c) to require that a Registration Agency review a program's completion rates in comparison to the national average for completion rates. Programs with completion rates lower than the national average will receive technical assistance from a Registration Agency. As stated in the NPRM, the use of completion rates in program reviews is not intended to limit or terminate existing apprenticeship programs that are receiving technical assistance from a Registration Agency and demonstrating improved program performance, or to impede prospective apprenticeship program sponsors. Rather, the use of completion rates is intended to strengthen the program outcomes and quality in the National Apprenticeship System by setting a benchmark that identifies programs that could benefit from technical assistance.
In order to reflect the focus on technical assistance for programs with completion rates below that national average, we have dropped the reference that appeared in proposed § 29.6(c) for the Registration Agency to “take other appropriate action” against such programs. Deletion of this phrase is meant to clarify that simply falling below that national average for completion rates does not lead to deregistration procedures. Completion rates may potentially factor into deregistration procedures only when they demonstrate an ongoing pattern of very low completion rates over a period of several years (see discussion of “persistent and significant failure to perform” below).
Rather than specifying the details for implementation of program performance standards in registered apprenticeship, we believe the best use of § 29.6 is to establish a regulatory framework that provides the basis for the Office of Apprenticeship to issue more detailed guidance. The Office of Apprenticeship will consult with apprenticeship program sponsors and recognized State Apprenticeship Agencies to develop and issue guidance regarding program performance standards and accountability in the National Apprenticeship System. This consultation process would also be responsive to a commenter's recommendation to further discuss provisions for completion rates with interested stakeholders. This approach is similar to the Department's regulatory framework and performance management system established for the programs under the Workforce Investment Act.
The Department disagrees with assertions that there is a relationship between bid requirements for State and local construction projects and provisions for completion rates in §§ 29.6(b) and (c) which will likely have an annual impact on the economy exceeding $100 million. None of the provisions in final § 29.6 nor any other provision in the final rule provide for or relate to the establishment bid requirements for State and local construction projects.
Many commenters opposed provisions of § 29.6(d) which provided that the cancellation of apprenticeship agreements during the probationary period would not have an adverse impact on a sponsor's completion rate. One commenter stated that all cancellations should be considered in program reviews, particularly to deter program sponsors who register programs primarily to meet contract requirements for Federal works projects under the Davis-Bacon Act.
We received three comments on proposed § 29.7, regarding requirements for apprenticeship agreements, none of which advocated for major changes to the proposed provisions. The proposed changes update terminology, align the apprenticeship agreement with the three approaches to apprenticeship progression (time-based, competency-based, or hybrid), and add space on the agreement in which apprentices would voluntarily provide their Social Security Number. The Registration Agency will use apprentices' Social Security Numbers for performance management and Davis-Bacon Act purposes; in particular, for use in calculating employment outcomes of the National Apprenticeship System as defined in the Department's common measures for Federal job training programs. The Department has an approved information collection request for the use of Social Security Number information on an apprenticeship agreement (OMB Control Number 1205–0223). One commenter suggested that the proposed changes will result in an undue time and financial burden for State Apprenticeship Agencies. Two commenters suggested additional requirements for collection of equal employment opportunity information, which are beyond the scope of revisions to part 29.
We note that the non-discrimination provisions in § 29.7 are limited to the prohibitions that are applicable under part 30, regulations for Equal Employment Opportunity in Apprenticeship and Training, and do not describe the full range of Equal Employment Opportunity protections that may be applicable to registered apprenticeship programs. Registered apprenticeship programs are subject to other Federal, State and local laws and regulations regarding Equal Employment Opportunity in employment and training, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964.
Upon further review, we have determined that there are three minor changes necessary to align this section with revisions to the definitions and standards of apprenticeship discussed above. With the deletion of the definition for “supplemental instruction,” as discussed above in the discussion of definitions, this term is no longer appropriate for requirements in § 29.7(e)(2) regarding number of hours in related instruction. We have revised § 29.7(e)(2) accordingly. For consistency with final § 29.5(b)(2)(ii), which specifies that competency-based programs must still require an apprentice to complete the on-the-job learning component of registered apprenticeship, we have revised the requirement in § 29.7(e) for competency-based programs to include statements about on-the-job learning. We have also replaced the term “school time” in 29.7(g) with a more appropriate term, “related instruction,” to describe whether or not the apprentice is compensated during the related instruction component of registered apprenticeship.
Section 29.8 clarifies the provisions for deregistration of registered apprenticeship programs. We have corrected a mistake in proposed § 29.8(b)(1) by replacing “and” with “or” to clarify that the Registration Agency may undertake deregistration proceedings when a program is not conducted, operated
Five commenters addressed proposed changes in § 29.8, which clarifies existing § 29.7 provisions for deregistration of registered apprenticeship programs. One commenter requested clarification as to whether a program would automatically enter the deregistration process if it is without an apprentice for 15 or more days. Two comments expressed concern about the Department's ability to sufficiently address the burdens associated with deregistration procedures, emphasizing that deregistration should be conducted at the local level rather than the Federal level. Three commenters asserted that the proposed rule would usurp power from State Apprenticeship Agencies.
With regard to concerns about burdens associated with deregistration procedures and usurping power from the State Apprenticeship Agency, § 29.8 deletes the term “Bureau (Office of Apprenticeship) registered programs” and uses the term “Registration Agency” to clarify that program
We emphasize that final § 29.8 carries forward existing practice that has evolved under current regulations, in which the Department has deferred to recognized State Apprenticeship Agency authority in matters of program deregistration. Therefore, the Department anticipates having sufficient resources to address any burdens associated with deregistration procedures, as these matters will primarily pertain to deregistration proceedings in States where the Department is the Registration Agency.
Final § 29.8(b)(7) clarifies that if a sponsor requests a hearing, the Administrator refers the matter to an Administrative Law Judge, who will convene a hearing and issue a decision in accordance with § 29.10(c). This clarification aligns the final rule with Secretary's Order 1–2002, 67 FR 64272, Oct. 17, 2002, which provides that an Administrative Law Judge's decision in a program deregistration is only subject to discretionary review by the Administrative Review Board.
The Department received one comment on this section. The commenter agreed with the proposed text on reinstatement of program registration.
Four commenters addressed proposed changes to § 29.10, which sets the requirements for deregistration hearings. One commenter agreed with the proposed changes. Another commenter opposed the provisions in this section on the basis that hearings for deregistration should be kept at the State level. A third commenter asked if this section applies to programs registered with State Apprenticeship Agencies. Another commenter indicated that the public had not been allowed sufficient time to review the Office of Administrative Law Judges hearing rules at 29 CFR part 18, which will apply to deregistration hearings. This commenter also suggested that the proposed changes to the method of appeal in existing § 29.9 would reduce access to due process of law. The commenter suggested that a hearing before an Administrative Law Judge, as established in § 29.10, differs considerably from proceedings before a hearing officer or a trial by jury.
We disagree with the commenter's assertion that hearings for reinstatement of program registration should be kept at the State level. Under existing § 29.9 such hearings are conducted at the Federal level. Final § 29.10 merely changes the Federal official conducting the hearing.
We note that the requirements for hearings for deregistration apply to all programs that have been registered for Federal purposes, regardless of whether the program is registered with the Office of Apprenticeship or for Federal purposes with a recognized State Apprenticeship Agency.
Except as noted, we will promulgate final § 29.10 as proposed.
One comment was received on each of these two proposed provisions, both expressing support.
The Department will promulgate § 29.11 and § 29.12 as proposed.
Proposed § 29.13 revises the provisions in existing § 29.12 that address the recognition of State Apprenticeship Agencies for Federal purposes and clarifies how the Office of Apprenticeship oversees the National Apprenticeship System. We received 125 comments on this section overall, 110 of which addressed specific provisions, including limiting recognition to the State Apprenticeship Agency; role of the State Apprenticeship Council; linkages with economic development and workforce investment systems; location of a State Apprenticeship Agency; requirements for resources to carry out the functions of a Registration Agency; reciprocal approval of programs and standards in the building and construction industries; Departmental review and approval of State apprenticeship legislation, regulations, policies, and operational procedures; application for recognition; and renewal and maintenance of recognition. Several commenters strongly opposed the revisions, asserting that the proposed changes were overly prescriptive and would significantly limit a State's authority to oversee registered apprenticeship functions within its jurisdiction. It is our responsibility to ensure that States recognized as having such authority continue to conform to the Federal requirements on which the recognition is based. As described below, the Department's recognition of a State Apprenticeship Agency pertains to granting Federal-State partnership in which the Department grants the State authority to act on our behalf as a Registration Agency. The provisions of parts 29 and 30 set the conditions for a State to obtain and maintain that authority; these provisions are not meant to impact State authority to regulate apprenticeship for State purposes.
Twelve comments focused on proposed § 29.13(a), which provides for “recognition” only of a State Apprenticeship Agency, and not a State Apprenticeship Council, and provides that the Department's recognition of the State Apprenticeship Agency confers “non-exclusive authority” to determine whether an apprenticeship program meets published standards and is eligible for those Federal purposes which require such a determination. Some commenters asserted that these changes conflict with their States' current law, whereby a State Apprenticeship Council oversees the State's apprenticeship system or promulgates regulations that oversee a State Apprenticeship Agency's work. Thus, the proposed changes would require revisions to State apprenticeship law and regulation. Another suggested that the Department should not dictate to the States the nature and structure of their government.
We received twenty (20) comments regarding proposed § 29.13(a)(2), which consolidates the provisions on State Apprenticeship Councils. Several commenters asserted that the current roles and responsibilities of State Apprenticeship Councils and State Apprenticeship Agencies work well, and questioned the need to adjust this system. Many expressed concern that we are eliminating State Apprenticeship Councils. One commenter suggested that removing a State Apprenticeship Council's decision-making role would significantly reduce the level of participation from key stakeholders, potentially creating far-reaching negative effects for apprenticeship programs. Another commenter questioned why the proposed regulations do not identify acceptable State Apprenticeship Council membership, as provided in existing part 29.
Two commenters asserted that the Department lacked statutory authority to require or mandate that the State Apprenticeship Agency integrate with the State's economic development strategies and public workforce investment system, as provided in § 29.13(a)(6). Another commenter expressed support for this provision, and suggested that the Department also should encourage registered apprenticeship programs to develop agreements with community colleges.
We received ten comments opposing the proposed deletion of existing § 29.12(b)(1), which sets requirements for the location of the State Apprenticeship Agency in the State Department of Labor or in the agency of State government having jurisdiction of laws and regulations governing wages, hours, and working conditions. Eight commenters suggested that relocating a State Apprenticeship Agency would likely diminish the safety, health, and welfare of apprentices in the workplace. One commenter stated that as a result of the rule change, the apprenticeship program could be placed within a department or division of State government that is not familiar with or qualified to address issues pertaining to registered apprenticeship. Another commenter stated that the rule change is counter to the integration of apprenticeship into the public workforce development system and would interfere with seamless integration of worker protection considerations. One commenter stated that as a result of the rule change, the apprenticeship program could be placed within a department or division of State
Proposed § 29.13(b)(2), which required that State Apprenticeship Agencies provide sufficient budget and staff to carry out the functions of a Registration Agency, also generated considerable opposition. Four commenters stated that the proposed requirements in § 29.13(b)(2) are worthwhile guidelines for Registration Agencies, but asserted that the Department does not allocate sufficient staff and budget to carry out its responsibilities in the twenty-five States where the Office of Apprenticeship is the Registration Agency. Four commenters indicated that the Department does not have the authority to dictate budget mandates to the States.
We received thirty-eight comments about proposed § 29.13(b)(7), which would expand current provisions for reciprocal approval by eliminating the exception for programs and standards in the building and construction industries. The majority of comments opposed the proposal, and many requested that DOL reinstate the exception for building and construction industries. Two commenters asked DOL to clarify why the exemption was originally granted, why the proposed revisions would eliminate the exemption, and how this action will impact other related regulations, such as those pertaining to Federal works projects subject to the Davis-Bacon Act.
More than a dozen commenters raised issues associated with variations among State Apprenticeship Agency requirements for program registration. One set of commenters addressed variations in wage rates, asserting that it is unfair and economically disruptive to allow trades from one State to use the pay scale from their own State to bid on work in other States, particularly for apprentices employed on projects subject to the Davis-Bacon Act. Other commenters asserted that States have different quality (e.g., training hours) and licensing standards, which the proposed rule fails to recognize. A commenter stated that the proposed rule lacks language that would require a visiting sponsor registered in another State to meet or exceed existing local requirements for apprenticeship registration. A State asked DOL to clarify whether the host State's laws or the home State's laws would apply to the apprentice.
We acknowledge that commenters have raised important concerns about differences between the home States' and the host States' requirements. Revisions to § 29.13(b)(7) were intended to provide program sponsors registered for Federal purposes in one State with fairness in contractor bidding on Federal public works projects in another State that are subject to the Davis-Bacon Act, while still safeguarding the welfare of registered apprentices. We agree that the application of a home State's wage and hour and apprentice ratios in a host State could confer an unfair advantage to an out-of-state contractor bidding on a Federal public works project. Such an outcome would be unacceptable. That is why, in all instances where we have negotiated memoranda of understanding with recognized States to arrange for reciprocal approval of apprenticeship programs in the building and construction trades, we have consistently required that the wage and hour and apprenticeship ratio
Twenty-seven commenters expressed concerns about proposed § 29.13(b)(9), which explicitly requires State Apprenticeship Agencies to submit proposed modifications in the State's apprenticeship legislation, regulations, policies, and/or operational procedures for Departmental review and approval, prior to implementation, for conformity with the National Apprenticeship Act and the implementing regulations in 29 CFR parts 29 and 30.
Many comments expressed concern that proposed § 29.13(b)(9) ignores a State's authority to set policy and establish law to meet the unique needs of its industry and citizens. One commenter asserted that this change usurps States' authority and exceeds the authority granted by the National Apprenticeship Act. Other commenters asserted that the Office of Apprenticeship's required review will inhibit the State regulatory process and decrease State government's responsiveness to the public.
Further, the requirement is necessary for the Department's management of the National Apprenticeship System. Before it is permitted to register apprentices and apprenticeship programs, for Federal purposes, a State wishing to participate in the National Apprenticeship System must submit its apprenticeship law and other information (§§ 29.13(a) and (b)) to the Department for a determination that they conform to the requirements of Federal apprenticeship law. But, the State Apprenticeship Agency's responsibility to follow Federal law does not end there. Rather, a recognized State Apprenticeship Agency must continue to conform with the requirements of Federal law, particularly when the Agency wants to make changes to is own laws or regulations. Recent experience with reviews of recognized State Apprenticeship Agencies has underscored the need for the Department to monitor States' efforts to modify their apprenticeship laws, as they pertain to registered apprenticeship for Federal purposes. The Office of Apprenticeship's reviews have repeatedly identified provisions of State laws and regulations that were not consistent with Federal apprenticeship law; this has led to our requiring State Apprenticeship Agencies to take the corrective action necessary for them to attain conformity with parts 29 and 30 and with the National Apprenticeship Act.
Notice to the Office of Apprenticeship and an opportunity to review proposed changes to a State's apprenticeship law, regulation, and policies are necessary for Departmental oversight. However, the effect of purpose of proposed § 29.13(b)(9) will be to facilitate the Department's management of the National Apprenticeship System, not to usurp State authority to establish State law and policy. Accordingly, and in recognition of the concerns raised by commenters, we have revised § 29.13(b)(9) to provide that a State must submit all proposed modifications in apprenticeship legislation, regulations, policies and/or operational procedures for Office of Apprenticeship review and
Although the process for Office of Apprenticeship review and concurrence of a State's apprenticeship legislation, regulations, policies, and/or operational procedures may extend the time necessary for modifications, the potential imposition of additional time is justified by the need to ensure that revisions to State apprentice law, regulations, policies, and procedures conform to parts 29 and 30 and the National Apprenticeship Act.
Registration Agencies can help to maximize the efficiency of the process by notifying the Department of any modifications under consideration at the earliest opportunity. Further, States that proceed with revisions prior to completion of the Department's review and concurrence process can minimize the disruption that would result from subsequent Departmental non-concurrence through the inclusion of a saving clause. Such a clause could, for example, revive the text which was superseded by a modification to which the Department did not concur, or place the reader on notice that the revision would take effect only if or when the Department concurred with the change.
Three commenters raised concerns about proposed § 29.13(c), which establishes requirements for State Apprenticeship Agencies to apply for recognition from the Department. One commenter suggested that State Apprenticeship Agencies recognized by the Department under the current regulations should only be required to renew their status, not reapply for recognition. Another commenter asserted that requiring State
Five commenters addressed proposed § 29.13(d), which establishes a 5 year period for recognition of a State Apprenticeship Agency by the Department and provides a process for renewal and maintenance of recognition. Four commenters stated that DOL currently has the authority to withdraw recognition of a State Apprenticeship Agency for failure to conform to part 29 so there is no need to place further requirements on State Apprenticeship Agencies to renew their recognition every 5 years. One commenter asserted that requiring State Apprenticeship Agencies to renew their recognition diverts resources from program implementation and would interfere with funding and budget planning.
In the Department's view, a 5 year period provides a reasonable level of continuity for State Apprenticeship Agencies, while providing an efficient way to ensure that State Apprenticeship Agencies remain in conformity with Federal requirements. As discussed in the NPRM, the monitoring and reviews outlined in § 29.13(e) will form the basis for the Office of Apprenticeship's decision whether to continue recognition every 5 years. Therefore, the burden on State Apprenticeship Agencies for this 5 year renewal and maintenance of recognition will be minimal. We have revised final § 29.13(d) to clarify that the notification to States regarding conformity with this part will be based on the Office of Apprenticeship's monitoring of a State Registration Agency's compliance, as provided by § 29.13(e). We have revised § 29.13(d) accordingly.
No comments were received on proposed § 29.13(e), which is a new provision that provides for on-site review, self-assessment, and monitoring of the State's apprenticeship law and procedures, and is based on the Department's existing procedures for determining if State Apprenticeship Agencies are complying with part 29. However, upon further review we noted two non-substantive changes were necessary to correct grammatical errors, and we have revised final § 29.13(e) accordingly.
One comment was received on proposed § 29.13(f), a new provision which provides for the steps to be taken if a State Apprenticeship Agency is found to be out of compliance with part 29. Those steps, which are based on the Department's current practice of compliance assistance, include the provision of technical assistance, and, where problems are found, conferral of “Conditional Recognition” for 45 days during which the State Apprenticeship Agency must submit a corrective action plan to remedy the conforming activity for failure to maintain compliance. The commenter suggested extending the period of “Conditional Recognition” to 90 days, asserting that additional time might be necessary to change State law that was found to be out of conformity with 29 CFR part 29.
No comments were received on proposed § 29.13(g), which is based on existing § 29.12(d) and simplifies and clarifies the process for determining whether to deny a State Apprenticeship Agency recognition and provides the procedures for appeal of that decision. However, upon further review we have determined that further clarification was needed with regard to informing a State Apprenticeship Agency about a request for administrative review of a denial of recognition. We have revised § 29.13(g) to clarify that the written notice to a State Apprenticeship Agency denying
No comments were received on proposed § 29.13(h), which carried forward provisions for registration with the Office of Apprenticeship in the event that a State Apprenticeship Agency is not recognized by the Office of Apprenticeship for Federal purposes, that such recognition has been withdrawn, or that no State Apprenticeship Agency exists. Section 29.14(e) also establishes requirements for registration with the Office of Apprenticeship for program sponsors affected by derecognition of a State Apprenticeship Agency. To avoid duplication in the final rule, we have deleted proposed § 29.13(h)(2) and revised final § 29.14(e) to incorporate provisions from proposed § 29.13(h)(2) that provide opportunities for a program sponsor to request registration with the Office of Apprenticeship where a State Apprenticeship Agency does not exist or a State Apprenticeship Agency is not recognized by the Office of Apprenticeship for Federal purposes.
No comments were received on proposed § 29.13(i) and § 29.13(j). Therefore, we are promulgating 29.13(i) and 29.13(j) as proposed.
The Department received one comment on proposed revisions to the rules on derecognition of State Apprenticeship Agencies (existing § 29.13, proposed § 29.14). The commenter generally supported the Department's proposed changes to § 29.14, but suggested new penalties such as clarification that Federal funds will be withheld from State Apprenticeship Agencies that unfairly restrict apprenticeship opportunities in a manner inconsistent with parts 29 and 30 and the National Apprenticeship Act.
Upon further review, we have also added provisions to § 29.14(c)(3)(i) to clarify that the Administrative Review Board must decide any case it accepts for review within 180 days of the close of the record and that, if not so decided, the Administrative Law Judge's decision constitutes final agency action. This clarification aligns final § 29.14(c) with provisions for administrative review in final § 29.10(c).
Also, as discussed above § 29.14(e) has been revised to incorporate provisions for a program sponsor to request registration with the Office of Apprenticeship where a State Apprenticeship Agency does not exist or a State Apprenticeship Agency is not recognized by the Office of Apprenticeship for Federal purposes.
This final rule to revise 29 CFR part 29 is a significant regulatory action under § 3(f) of Executive Order 12866 because it raises “novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles” set forth in the E.O. Accordingly, pursuant to the Executive Order, it was reviewed by OMB. Revisions to 29 CFR part 29 pertain to the terms and conditions for an apprenticeship program sponsor to register program standards and apprentices for Federal purposes, and for the Department to grant authority to a State Registration Agency to act on behalf of the Department to register apprenticeship programs and standards for Federal purposes. The benefits of recognition of an apprenticeship program and apprentices for Federal purposes are to meet requirements of a Federal contract, grant, agreement or arrangement dealing with apprenticeship; and requirements for any Federal financial or other assistance, benefit, privilege, contribution, allowance, exemption, preference or right pertaining to apprenticeship. Since this final rule is the first revision to regulations for the National Apprenticeship System since the Department first promulgated the rule in 1977, it raises novel policy issues. However, the Department has determined that the costs to program sponsors and State Registration Agencies associated with registering apprenticeship programs and apprentices under these revised terms and conditions are only minimally different from those pertaining to the current requirements of the current 29 CFR part 29. These revisions will not have an annual effect on the economy of $100 million or more nor will they adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in any material way. Therefore, we conclude that this final rule is not economically significant and it is not subject to § 6(a)(3)(C) of the Executive Order.
This final rule requires Registered Apprenticeship Program Sponsors and apprentices to submit Apprenticeship Agreement forms to DOL or to the appropriate State Registration Agency. These requirements were previously reviewed and approved for use by OMB under 29 U.S.C. 50 and 29 CFR 29.1, and assigned OMB control number 1205–0223 under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 (PRA). Additionally, OMB previously approved the Department's information collection request for the Apprenticeship Agreement in § 29.7, including collection of the apprentice's Social Security Number (OMB Control Number 1205–0223, expiration date of October 31, 2008. The Department is in the process of obtaining an extension of this form for three additional years). The Department has determined that this final rule contains no new information collection requirements, nor that any of these requirements are substantively or materially modified by the changes contained herein.
The Department has reviewed the final rule in accordance with E.O. 13132 and has determined that it has Federalism implications because it has substantial direct effects on States and the relationship between the National government and the States. As noted in the NPRM, the Department developed the proposed rule based upon advice from the Advisory Committee on Apprenticeship (ACA), and in consultation with State Apprenticeship Agencies and the National Association of State and Territorial Apprenticeship Directors (NASTAD), the organization representing apprenticeship officials from the District of Columbia, 27 States, and three Territories. The ACA, which contains representatives of two associations of State labor and apprenticeship officials (including NASTAD), offered specific suggestions on matters relating to apprenticeship
Although NASTAD and State Apprenticeship Agencies did not have direct input into the development of sections in the proposed and final rule that directly affect States and the relationship between the National government and the States, the Department gave thorough consideration to NASTAD's recommendations on existing regulations submitted in a letter from the President of NASTAD in December 2006, in response to a request from the Office of Apprenticeship. NASTAD's recommendations for the proposed rule pertained to the roles of State Apprenticeship Councils and State Apprenticeship Agencies, composition of State Apprenticeship Councils, requirements for reciprocal approval for programs registered in one State seeking recognition in another State, the final rule's effect on recognition status for currently recognized States Registration Agencies, and the name of the DOL entity responsible for oversight of the National Apprenticeship System.
As stated in the NPRM and discussed further below, we considered this input and adopted most of NASTAD's recommendations in developing the proposed and final rule. Additionally, in our review of comments submitted by NASTAD and States on the proposed rule, we have identified six areas of concern for States, some of which are consistent with NASTAD's recommendations for revisions. The areas are: increased administrative burdens on States; impact on a State's internal organizational structure; requirements for linkages with the workforce investment system; expansion of reciprocal approval for programs and standards in the building and construction industries; Departmental review of State apprenticeship laws, regulations, policies and procedures; and recognition status of currently recognized States Registration Agencies.
Where appropriate and feasible for the effective functioning of the Federal-State partnership over registered apprenticeship for Federal purposes, we have revised the final rule to ease the administrative burdens on States. For other issues pertaining to this Federal-State partnership, we have determined that proposed requirements in the final rule are necessary to ensure conformity with Federal law, and consistency across the National Apprenticeship System.
As noted in the NPRM and in discussions above, the final rule affects internal State organizational structures with regard to State Apprenticeship Agencies and State Apprenticeship Councils. Although no changes have been made to the final rule regarding limiting recognition to State Apprenticeship Agencies, we have set forth further explanation for this requirement. We have determined that because a direct relationship between Federal and State agencies is necessary for the smooth functioning of the National Apprenticeships System, the Department will only grant recognition to a State Apprenticeship Agency to act as a Registration Agency for registered apprenticeship for Federal purposes. The final rule requires recognized States to establish and continue to use a State Apprenticeship Council, which may serve either an advisory or a regulatory role. Accordingly, compliance with the final rule may require a State seeking recognition as a Registration Agency to modify its internal organizational structures pertaining to its State Apprenticeship Agency and its State Apprenticeship Council.
We recognize that the National Apprenticeship Act and the Workforce Investment Act do not authorize the Department to mandate that a State's workforce investment system and economic development strategies include registered apprenticeship. Although the Department encourages integration, and a State Apprenticeship Agency may seek such integration, the authority for internal State organizational issues remains with the State. Therefore, the final rule simply requires a State Apprenticeship Agency seeking recognition to demonstrate how it is pursuing linkages and coordination with the State's publicly funded workforce investment system and economic development strategies. As discussed in the NPRM, through increased coordination, State Apprenticeship Agencies can promote registered apprenticeship to a broader audience and further expand apprenticeship into high growth, high demand occupations.
The NPRM also noted that the proposed extension of requirements for reciprocal approval of programs in building and construction industries registered in other States may also raise questions regarding which States' registration requirements would apply. As discussed above, the final rule clarifies that program sponsors seeking reciprocal approval from a “host” State must meet the host State's wage and hour provisions and apprenticeship ratio standards. Therefore, State Registration Agencies retain the authority to enforce wage and hour provisions and apprenticeship ratio standards in their respective State's labor law.
Commenters asserted that the requirement for Office of Apprenticeship review and approval of proposed modifications to State apprenticeship legislation, regulation, policies and procedures prior to implementation usurps State authority. The final rule clarifies that the National Apprenticeship Act's broad mandate for the Department to safeguard the welfare of apprentices provides the Department with authority to ensure that a recognized State Apprenticeship Agency remains accountable for its conformity with Federal law. However, we recognize that a State has sovereign power and authority to establish State law and policy. To balance the interests of these two authorities (State authority to promulgate State law and policy, with the Department's authority to ensure that a recognized State remains accountable for conformity with Federal law), the final rule provides for the Office of Apprenticeship's concurrence on proposed modifications to State apprenticeship legislation, regulation, policies and procedures for Federal purposes. Provisions for review and concurrence are intended to provide a reasonable opportunity for the Department to inform recognized States of areas of nonconformity; the provisions are not intended to diminish or restrict a State's authority to establish State law and policy. A State's decision to establish State law or policy that does not conform to requirements of Federal apprenticeship law or regulations has consequences, which may include the derecognition of the State Apprenticeship Agency as the Registration Agency authorized to register apprenticeship programs and standards for Federal purposes. However, such recognition does not affect the State's authority to register apprenticeship programs and standards for State purposes.
We have also extended the time frame for States seeking new or continued recognition as a Registration Agency to submit documentation specified in § 29.13(a). The NPRM provided 1 year from the effective date of the final rule; the final rule provides 2 years from the effective date of the final rule in recognition of the burdens associated with transition period.
Finally, we reiterate that the final rule pertains to registered apprenticeship for
This regulatory action has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, and E.O. 12875. The Department has determined that this rule does not include any Federal mandate that may result in increased expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, adjusted by the rate of inflation between 1995 and 2008 ($130 million). Accordingly, the Department has not included a budgetary impact estimate.
The Department certifies that this final rule has been assessed according to § 654 of Public Law 105–277, 112 Stat. 2681, for its effect on family well-being. The Department concludes that the rule will not adversely affect the well-being of the Nation's families. Rather, it should have a positive effect by safeguarding the welfare of registered apprentices.
The Department has notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification pursuant to the RFA at 5 U.S.C. 605(b), that this final rule will not have a significant economic impact on a substantial number of small entities. Under the RFA, no regulatory flexibility analysis is required where the rule will not have a significant economic impact on a substantial number of small entities. A small entity is defined as a small business, small not-for-profit organization, or small governmental jurisdiction. 5 U.S.C. 601(3)–(5). The definition of the term “small entity” does not include States or individuals. This rule revises and updates procedures for labor standards for registered apprenticeship programs administered by the States and the Department, and not by small governmental jurisdictions. There are approximately 250,000 separate employers who participate in roughly 29,000 registered apprenticeship programs. There are an estimated 468,000 apprentices in the National Apprenticeship System.
Although there may be a substantial number of small businesses impacted by this rulemaking (at the most 250,000 employers), the Department does not believe that there will be a significant economic impact to these entities. Small businesses will not incur additional incremental costs from this rulemaking because the aspect of the rule most likely to impact small entities, program oversight, primarily applies to the responsibilities of Registration Agencies to monitor registered apprenticeship programs rather than imposing requirements on the registered apprenticeship programs. For example, final § 29.5 carries forward current program oversight requirements for program sponsors to comply with 29 CFR part 30, Equal Employment Opportunity regulations, which includes compliance reviews conducted by Registration Agencies. Final § 29.6 imposes on Registration Agencies a new regulatory requirement to perform quality assurance assessments on registered apprenticeship programs as part of the Agencies' performance accountability responsibilities. While this is a new provision in part 29, the requirement to perform quality assurance assessments is long-standing. Pursuant to Circular 92–02, the Office of Apprenticeship guidance on quality assurance assessments issued in 1991, Registration Agencies have assessed apprenticeship program performance to identify areas of strength and opportunities for improvement. The final rule's provisions for Equal Employment Opportunity Compliance Reviews and quality assurance assessments impose no assessment responsibilities on small programs or other programs. Compliance costs to program sponsors associated with program oversight will be the same as under current regulations.
However, through comments on the NPRM, it has come to our attention that the program performance provisions in § 29.6 may place an unintended burden on small apprenticeship program sponsors such as small businesses by potentially increasing the cost of maintaining conformity with this part or by potentially leading to deregistration of small apprenticeship programs. In particular, we are aware of concerns that the requirement in § 29.6(c) that Registration Agencies evaluate program performance by comparing completion rates of programs in like industries, occupations, and geographic areas could possibly unfairly penalize programs operated by small businesses. We are also aware of concerns that the proposed § 29.6(a) requirement that every program must have at least one registered apprentice could unfairly impact small apprenticeship programs that may experience short periods of time without any apprentices. To avoid such unintended consequences, the Department has made changes to these provisions in the final rule discussed below.
As discussed above in the definitions in § 29.2, program performance standards in § 29.6, and program deregistration in § 29.8, the Department has clarified the relevant provisions in the final rule to address concerns about compliance costs and burdens on small entities potentially associated with a Registration Agency's evaluation of programs' performance. In § 29.6(a), the NPRM provided that every program must have at least one registered apprentice in order to be designated and retain designation as a registered apprenticeship program for Federal purposes. We are persuaded that there may be times when a sponsor may have a lag between training cycles and be without a registered apprentice for a short period of time and we recognize that small programs with fewer apprentices may encounter such situations more frequently than larger programs. Therefore, the final rule establishes a 1 year time frame during which a program sponsor may be without a registered apprentice so that normal program cycles will not lead to deregistration of small apprenticeship programs. By providing a period of up to one year so that the rule will not affect small programs that are without apprentices during the periods between training cycles, the revised § 29.6(a) reduces administrative costs and burdens associated with small program sponsors potentially having to re-register their program(s) that could have otherwise been cancelled for nonconformity with proposed § 29.6(a).
We have revised § 29.6(c) to address potential concerns that the requirement that Registration Agencies evaluate program performance by comparing completion rates of programs in like industries, occupations, and geographic areas could negatively impact small apprenticeship programs if Registration Agencies used these comparisons of completion rates to unfairly penalize programs operated by small businesses. To address these concerns and to minimize any potential unfair impact from the performance accountability provisions on small apprenticeship
With the addition of definitions for quality assurance assessment and completion rate in the definitions in final § 29.2; and clarifications and revisions to program performance in final § 29.6 and program deregistration in final § 29.8, the final rule minimizes compliance costs and reduces any potential burdens on small entities that may have resulted from the NPRM. Therefore, the Department certifies that this proposed rule will not have a significant impact on a substantial number of small entities, and as a result no regulatory flexibility analysis is required.
As discussed above with regard to program performance standards in final § 29.6, one commenter asserted the impact of the provisions for evaluation of apprenticeship programs qualifies the rule as a major rule under E.O. 12866 and SBREFA. The Department disagrees. As noted above, provisions for evaluation of program performance are necessary to ensure program quality and accountability in the National Apprenticeship System, and do not pertain to the establishment bid requirements for State and local construction projects. Therefore, the Department certifies that this final rule is not a major rule as defined by § 804 of the SBREFA. 5 U.S.C. 804.
The Department has reviewed this final rule in accordance with E.O. 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects 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.”
This final rule has been drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The rule has been written so as to minimize litigation and provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.
The Department drafted this Final Rule in plain language.
This program is listed in the Catalog of Federal Domestic Assistance at Number 17.201.
Apprentice agreement and complaints, Apprenticeability criteria, Program standards, registration and deregistration, Sponsor eligibility, State Apprenticeship Agency recognition and derecognition.
Section 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40 U.S.C. 276c; 5 U.S.C. 301) Reorganization Plan No. 14 of 1950, 64 Stat. 1267 (5 U.S.C. App. P. 534).
(a) The National Apprenticeship Act of 1937, section 1 (29 U.S.C. 50), authorizes and directs the Secretary of Labor “to formulate and promote the furtherance of labor standards necessary to safeguard the welfare of apprentices, to extend the application of such standards by encouraging the inclusion thereof in contracts of apprenticeship, to bring together employers and labor for the formulation of programs of apprenticeship, to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship, and to cooperate with the Office of Education under the Department of Health, Education, and Welfare * * *.” Section 2 of the Act authorizes the Secretary of Labor to “publish information relating to existing and proposed labor standards of apprenticeship,” and to “appoint national advisory committees * * *.” (29 U.S.C. 50a).
(b) The purpose of this part is to set forth labor standards to safeguard the welfare of apprentices, promote apprenticeship opportunity, and to extend the application of such standards by prescribing policies and procedures concerning the registration, for certain Federal purposes, of acceptable apprenticeship programs with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship. These labor standards, policies and procedures cover the registration, cancellation and deregistration of apprenticeship programs and of apprenticeship agreements; the recognition of a State agency as an authorized agency for registering apprenticeship programs for certain Federal purposes; and matters relating thereto.
(1) A joint committee is composed of an equal number of representatives of the employer(s) and of the employees represented by a bona fide collective bargaining agent(s).
(2) A non-joint committee, which may also be known as a unilateral or group non-joint (which may include employees) committee, has employer representatives but does not have a bona fide collective bargaining agent as a participant.
(1) The Office of Apprenticeship has approved a set of National Guidelines for Apprenticeship Standards developed by a national committee or organization, joint or unilateral, for policy or guideline use by local affiliates, as conforming to the standards of apprenticeship set forth in § 29.5;
(2) A Registration Agency has established that an individual is eligible for probationary employment as an apprentice under a registered apprenticeship program;
(3) A Registration Agency has registered an apprenticeship program as evidenced by a Certificate of Registration or other written indicia;
(4) A Registration Agency has determined that an apprentice has successfully met the requirements to receive an interim credential; or
(5) A Registration Agency has determined that an individual has successfully completed apprenticeship.
(a) Eligibility for registration of an apprenticeship program for various Federal purposes is conditioned upon a program's conformity with the apprenticeship program standards published in this part. For a program to be determined by the Secretary as being in conformity with these published standards, the program must apply for registration and be registered with the Office of Apprenticeship or with a State Apprenticeship Agency recognized by the Office of Apprenticeship. The determination by the Secretary that the program meets the apprenticeship program standards is effectuated only through such registration.
(b) Only an apprenticeship program or agreement that meets the following criteria is eligible for Office of Apprenticeship or State Apprenticeship Agency registration:
(1) It is in conformity with the requirements of this part and the training is in an apprenticeable occupation having the characteristics set forth in § 29.4 of this part; and
(2) It is in conformity with the requirements of the Department's regulation on Equal Employment Opportunity in Apprenticeship and Training in 29 CFR part 30, as amended.
(c) Except as provided under paragraph (d) of this section, apprentices must be individually registered under a registered program. Such individual registration may be affected:
(1) By filing copies of each individual apprenticeship agreement with the Registration Agency; or
(2) Subject to prior Office of Apprenticeship or recognized State Apprenticeship Agency approval, by filing a master copy of such agreement followed by a listing of the name, and other required data, of each individual when apprenticed.
(d) The names of persons in probationary employment as an apprentice under an apprenticeship program registered by the Office of Apprenticeship or a recognized State Apprenticeship Agency, if not individually registered under such program, must be submitted within 45 days of employment to the Office of Apprenticeship or State Apprenticeship Agency for certification to establish the apprentice as eligible for such probationary employment.
(e) The appropriate Registration Agency must be notified within 45 days of persons who have successfully completed apprenticeship programs; and of transfers, suspensions, and cancellations of apprenticeship agreements and a statement of the reasons therefore.
(f) Operating apprenticeship programs, when approved by the Office of Apprenticeship, are accorded registration evidenced by a Certificate of Registration. Programs approved by recognized State Apprenticeship Agencies must be accorded registration and/or approval evidenced by a similar certificate or other written indicia. When approved by the Office of Apprenticeship, National Apprenticeship Guideline Standards for policy or guidance will be accorded a certificate.
(g) Applications for new programs that the Registration Agency determines meet the required standards for program registration must be given provisional approval for a period of 1 year. The Registration Agency must review all new programs for quality and for conformity with the requirements of this part at the end of the first year after registration. At that time:
(1) a program that conforms with the requirements of this part:
(i) may be made permanent; or
(ii) may continue to be provisionally approved through the first full training cycle.
(2) a program not in operation or not conforming to the regulations during the provisional approval period must be recommended for deregistration procedures.
(h) The Registration Agency must review all programs for quality and for conformity with the requirements of this part at the end of the first full training cycle. A satisfactory review of a provisionally approved program will result in conversion of provisional approval to permanent registration. Subsequent reviews must be conducted no less frequently than every five years. Programs not in operation or not conforming to the regulations must be recommended for deregistration procedures.
(i) Any sponsor proposals or applications for modification(s) or change(s) to registered programs or certified National Guidelines for Apprenticeship Standards must be submitted to the Registration Agency. The Registration Agency must make a determination on whether to approve such submissions within 90 days from the date of receipt. If approved, the modification(s) or change(s) will be recorded and acknowledged within 90 days of approval as an amendment to such program. If not approved, the sponsor must be notified of the disapproval and the reasons therefore and provided the appropriate technical assistance.
(j) Under a program proposed for registration by an employer or employers' association, where the standards, collective bargaining agreement or other instrument provides for participation by a union in any manner in the operation of the substantive matters of the apprenticeship program, and such participation is exercised, written acknowledgement of union agreement or no objection to the registration is required. Where no such participation is evidenced and practiced, the employer or employers' association must simultaneously furnish to an existing union, which is the collective bargaining agent of the employees to be trained, a copy of its application for registration and of the apprenticeship program. The Registration Agency must provide for receipt of union comments, if any, within 45 days before final action on the application for registration and/or approval.
(k) Where the employees to be trained have no collective bargaining agreement, an apprenticeship program may be proposed for registration by an employer or group of employers, or an employer association.
An apprenticeable occupation is one which is specified by industry and which must:
(a) Involve skills that are customarily learned in a practical way through a structured, systematic program of on-the-job supervised learning;
(b) Be clearly identified and commonly recognized throughout an industry;
(c) Involve the progressive attainment of manual, mechanical or technical skills and knowledge which, in accordance with the industry standard for the occupation, would require the completion of at least 2,000 hours of on-the-job learning to attain; and
(d) Require related instruction to supplement the on-the-job learning.
An apprenticeship program, to be eligible for approval and registration by a Registration Agency, must conform to the following standards:
(a) The program must have an organized, written plan (program standards) embodying the terms and conditions of employment, training, and supervision of one or more apprentices in an apprenticeable occupation, as defined in this part, and subscribed to by a sponsor who has undertaken to carry out the apprentice training program.
(b) The program standards must contain provisions that address:
(1) The employment and training of the apprentice in a skilled occupation.
(2) The term of apprenticeship, which for an individual apprentice may be measured either through the completion of the industry standard for on-the-job learning (at least 2,000 hours) (time-based approach), the attainment of competency (competency-based approach), or a blend of the time-based and competency-based approaches (hybrid approach).
(i) The time-based approach measures skill acquisition through the individual apprentice's completion of at least 2,000 hours of on-the-job learning as described in a work process schedule.
(ii) The competency-based approach measures skill acquisition through the individual apprentice's successful demonstration of acquired skills and knowledge, as verified by the program sponsor. Programs utilizing this approach must still require apprentices to complete an on-the-job learning component of Registered Apprenticeship. The program standards must address how on-the-job learning will be integrated into the program, describe competencies, and identify an appropriate means of testing and evaluation for such competencies.
(iii) The hybrid approach measures the individual apprentice's skill acquisition through a combination of specified minimum number of hours of on-the-job learning and the successful demonstration of competency as described in a work process schedule.
(iv) The determination of the appropriate approach for the program standards is made by the program sponsor, subject to approval by the Registration Agency of the determination as appropriate to the apprenticeable occupation for which the program standards are registered.
(3) An outline of the work processes in which the apprentice will receive supervised work experience and training on the job, and the allocation of the approximate amount of time to be spent in each major process.
(4) Provision for organized, related instruction in technical subjects related to the occupation. A minimum of 144 hours for each year of apprenticeship is recommended. This instruction in technical subjects may be accomplished through media such as classroom, occupational or industry courses, electronic media, or other instruction approved by the Registration Agency. Every apprenticeship instructor must:
(i) Meet the State Department of Education's requirements for a vocational-technical instructor in the State of registration, or be a subject matter expert, which is an individual, such as a journeyworker, who is recognized within an industry as having expertise in a specific occupation; and
(ii) Have training in teaching techniques and adult learning styles, which may occur before or after the apprenticeship instructor has started to provide the related technical instruction.
(5) A progressively increasing schedule of wages to be paid to the apprentice consistent with the skill acquired. The entry wage must not be less than the minimum wage prescribed by the Fair Labor Standards Act, where applicable, unless a higher wage is required by other applicable Federal law, State law, respective regulations, or by collective bargaining agreement.
(6) Periodic review and evaluation of the apprentice's performance on the job and in related instruction; and the maintenance of appropriate progress records.
(7) A numeric ratio of apprentices to journeyworkers consistent with proper supervision, training, safety, and continuity of employment, and applicable provisions in collective bargaining agreements, except where such ratios are expressly prohibited by the collective bargaining agreements. The ratio language must be specific and clearly described as to its application to the job site, workforce, department or plant.
(8) A probationary period reasonable in relation to the full apprenticeship term, with full credit given for such period toward completion of apprenticeship. The probationary period cannot exceed 25 percent of the length of the program, or 1 year, whichever is shorter.
(9) Adequate and safe equipment and facilities for training and supervision, and safety training for apprentices on the job and in related instruction.
(10) The minimum qualifications required by a sponsor for persons entering the apprenticeship program, with an eligible starting age not less than 16 years.
(11) The placement of an apprentice under a written Apprenticeship Agreement that meets the requirements of § 29.7 or the State apprenticeship law of a recognized Registration Agency. The agreement must directly, or by reference, incorporate the standards of the program as part of the agreement.
(12) The granting of advanced standing or credit for demonstrated competency, acquired experience, training, or skills for all applicants equally, with commensurate wages for any progression step so granted.
(13) The transfer of an apprentice between apprenticeship programs and within an apprenticeship program must be based on agreement between the apprentice and the affected apprenticeship committees or program sponsors, and must comply with the following requirements:
(i) The transferring apprentice must be provided a transcript of related instruction and on-the-job learning by the committee or program sponsor;
(ii) Transfer must be to the same occupation; and
(iii) A new apprenticeship agreement must be executed when the transfer occurs between program sponsors.
(14) Assurance of qualified training personnel and adequate supervision on the job.
(15) Recognition for successful completion of apprenticeship evidenced by an appropriate certificate issued by the Registration Agency.
(16) Program standards that utilize the competency-based or hybrid approach for progression through an apprenticeship and that choose to issue interim credentials must clearly identify the interim credentials, demonstrate how these credentials link to the components of the apprenticeable occupation, and establish the process for assessing an individual apprentice's demonstration of competency associated with the particular interim credential. Further, interim credentials must only be issued for recognized components of an apprenticeable occupation, thereby linking interim credentials specifically to the knowledge, skills, and abilities associated with those components of the apprenticeable occupation.
(17) Identification of the Registration Agency.
(18) Provision for the registration, cancellation and deregistration of the program; and for the prompt submission of any program standard modification or amendment to the Registration Agency for approval.
(19) Provision for registration of apprenticeship agreements, modifications, and amendments; notice to the Registration Agency of persons who have successfully completed apprenticeship programs; and notice of transfers, suspensions, and cancellations of apprenticeship agreements and a statement of the reasons therefore.
(20) Authority for the cancellation of an apprenticeship agreement during the probationary period by either party without stated cause; cancellation during the probationary period will not have an adverse impact on the sponsor's completion rate.
(21) Compliance with 29 CFR part 30, including the equal opportunity pledge prescribed in 29 CFR 30.3(b); an affirmative action plan complying with 29 CFR 30.4; and a method for the selection of apprentices authorized by 29 CFR 30.5, or compliance with parallel requirements contained in a State plan for equal opportunity in apprenticeship adopted under 29 CFR part 30 and approved by the Department. The apprenticeship standards must also include a statement that the program will be conducted, operated and administered in conformity with applicable provisions of 29 CFR part 30, as amended, or, if applicable, an approved State plan for equal opportunity in apprenticeship.
(22) Contact information (name, address, telephone number, and e-mail address if appropriate) for the appropriate individual with authority under the program to receive, process and make disposition of complaints.
(23) Recording and maintenance of all records concerning apprenticeship as may be required by the Office of Apprenticeship or recognized State Apprenticeship Agency and other applicable law.
(a) Every registered apprenticeship program must have at least one registered apprentice, except for the following specified periods of time, which may not exceed 1 year:
(1) Between the date when a program is registered and the date of registration for its first apprentice(s); or
(2) Between the date that a program graduates an apprentice and the date of registration for the next apprentice(s) in the program.
(b) Registration Agencies must evaluate performance of registered apprenticeship programs.
(1) The tools and factors to be used must include, but are not limited to:
(i) Quality assurance assessments;
(ii) Equal Employment Opportunity (EEO) Compliance Reviews; and
(iii) Completion rates.
(2) Any additional tools and factors used by the Registration Agency in evaluating program performance must adhere to the goals and policies of the Department articulated in this part and in guidance issued by the Office of Apprenticeship.
(c) In order to evaluate completion rates, the Registration Agency must review a program's completion rates in comparison to the national average for completion rates. Based on the review, the Registration Agency must provide technical assistance to programs with completion rates lower than the national average.
(d) Cancellation of apprenticeship agreements during the probationary period will not have an adverse impact on a sponsor's completion rate.
The apprenticeship agreement must contain, explicitly or by reference:
(a) Names and signatures of the contracting parties (apprentice, and the program sponsor or employer), and the signature of a parent or guardian if the apprentice is a minor.
(b) The date of birth and, on a voluntary basis, Social Security number of the apprentice.
(c) Contact information of the Program Sponsor and Registration Agency.
(d) A statement of the occupation in which the apprentice is to be trained, and the beginning date and term (duration) of apprenticeship.
(e) A statement showing:
(1) The number of hours to be spent by the apprentice in work on the job in a time-based program; or a description of the skill sets to be attained by completion of a competency-based program, including the on-the-job learning component; or the minimum number of hours to be spent by the apprentice and a description of the skill sets to be attained by completion of hybrid program; and
(2) The number of hours to be spent in related instruction in technical subjects related to the occupation, which is recommended to be not less than 144 hours per year.
(f) A statement setting forth a schedule of the work processes in the occupation or industry divisions in which the apprentice is to be trained and the approximate time to be spent at each process.
(g) A statement of the graduated scale of wages to be paid to the apprentice and whether or not the required related instruction is compensated.
(h) Statements providing:
(1) For a specific period of probation during which the apprenticeship agreement may be cancelled by either party to the agreement upon written notice to the registration agency, without adverse impact on the sponsor.
(2) That, after the probationary period, the agreement may be:
(i) Cancelled at the request of the apprentice, or
(ii) Suspended or cancelled by the sponsor, for good cause, with due notice to the apprentice and a reasonable opportunity for corrective action, and with written notice to the apprentice and to the Registration Agency of the final action taken.
(i) A reference incorporating as part of the agreement the standards of the apprenticeship program as they exist on the date of the agreement and as they may be amended during the period of the agreement.
(j) A statement that the apprentice will be accorded equal opportunity in all phases of apprenticeship employment and training, without discrimination because of race, color, religion, national origin, or sex.
(k) Contact information (name, address, phone, and e-mail if appropriate) of the appropriate authority designated under the program to receive, process and make disposition of controversies or differences arising out of the apprenticeship agreement when the controversies or differences cannot be adjusted locally or resolved in accordance with the established procedure or applicable collective bargaining provisions.
Deregistration of a program may be effected upon the voluntary action of the sponsor by submitting a request for cancellation of the registration in accordance with paragraph (a) of this section, or upon reasonable cause, by the Registration Agency instituting formal deregistration proceedings in accordance with paragraph (b) of this section.
(a) Deregistration at the request of the sponsor. The Registration Agency may cancel the registration of an apprenticeship program by written acknowledgment of such request stating the following:
(1) The registration is cancelled at the sponsor's request, and the effective date thereof;
(2) That, within 15 days of the date of the acknowledgment, the sponsor will notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration of the program removes the apprentice from coverage for Federal purposes which require the Secretary of Labor's approval of an apprenticeship program, and that all apprentices are referred to the Registration Agency for information about potential transfer to other registered apprenticeship programs.
(b) Deregistration by the Registration Agency upon reasonable cause.
(1)(i) Deregistration proceedings may be undertaken when the apprenticeship program is not conducted, operated, or administered in accordance with the program's registered provisions or with the requirements of this part, including not but limited to: failure to provide on-the-job learning; failure to provide related instruction; failure to pay the apprentice a progressively increasing schedule of wages consistent with the apprentices skills acquired; or persistent and significant failure to perform successfully. Deregistration proceedings for violation of equal opportunity requirements must be processed in accordance with the provisions under 29 CFR part 30.
(ii) For purposes of this section, persistent and significant failure to perform successfully occurs when a program sponsor consistently fails to register at least one apprentice, shows a pattern of poor quality assessment results over a period of several years, demonstrates an ongoing pattern of very low completion rates over a period of several years, or shows no indication of improvement in the areas identified by the Registration Agency during a review process as requiring corrective action.
(2) Where it appears the program is not being operated in accordance with the registered standards or with requirements of this part, the Registration Agency must notify the program sponsor in writing.
(3) The notice sent to the program sponsor's contact person must:
(i) Be sent by registered or certified mail, with return receipt requested;
(ii) State the shortcoming(s) and the remedy required; and
(iii) State that a determination of reasonable cause for deregistration will be made unless corrective action is effected within 30 days.
(4) Upon request by the sponsor for good cause, the 30-day term may be extended for another 30 days. During the period for corrective action, the Registration Agency must assist the sponsor in every reasonable way to achieve conformity.
(5) If the required correction is not effected within the allotted time, the Registration Agency must send a notice to the sponsor, by registered or certified mail, return receipt requested, stating the following:
(i) The notice is sent under this paragraph;
(ii) Certain deficiencies were called to the sponsor's attention (enumerating them and the remedial measures requested, with the dates of such occasions and letters), and that the sponsor has failed or refused to effect correction;
(iii) Based upon the stated deficiencies and failure to remedy them, a determination has been made that there is reasonable cause to deregister the program and the program may be deregistered unless, within 15 days of the receipt of this notice, the sponsor requests a hearing with the applicable Registration Agency; and
(iv) If the sponsor does not request a hearing, the entire matter will be submitted to the Administrator, Office of Apprenticeship, for a decision on the record with respect to deregistration.
(6) If the sponsor does not request a hearing, the Registration Agency will transmit to the Administrator a report containing all pertinent facts and circumstances concerning the nonconformity, including the findings and recommendation for deregistration, and copies of all relevant documents and records. Statements concerning interviews, meetings and conferences will include the time, date, place, and persons present. The Administrator will make a final order on the basis of the record presented.
(7) If the sponsor requests a hearing, the Registration Agency will transmit to the Administrator a report containing all the data listed in paragraph (b)(6) of this section, and the Administrator will refer the matter to the Office of Administrative Law Judges. An Administrative Law Judge will convene a hearing in accordance with § 29.10, and issue a decision as required in § 29.10(c).
(8) Every order of deregistration must contain a provision that the sponsor must, within 15 days of the effective date of the order, notify all registered apprentices of the deregistration of the program; the effective date thereof; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration removes the apprentice from coverage for Federal purposes which require the Secretary of Labor's approval of an apprenticeship program; and that all apprentices are referred to the Registration Agency for information about potential transfer to other registered apprenticeship programs.
Any apprenticeship program deregistered under § 29.8 may be reinstated upon presentation of adequate evidence that the apprenticeship program is operating in accordance with this part. Such evidence must be presented to the Registration Agency.
(a) Within 10 days of receipt of a request for a hearing, the Administrator of the Office of Apprenticeship must contact the Department's Office of Administrative Law Judges to request the designation of an Administrative
(1) A reasonable time and place of hearing;
(2) A statement of the provisions of this part pursuant to which the hearing is to be held; and
(3) A concise statement of the matters pursuant to which the action forming the basis of the hearing is proposed to be taken.
(b) The procedures contained in 29 CFR part 18 will apply to the disposition of the request for hearing except that:
(1) The Administrative Law Judge will receive, and make part of the record, documentary evidence offered by any party and accepted at the hearing. Copies thereof will be made available by the party submitting the documentary evidence to any party to the hearing upon request.
(2) Technical rules of evidence will not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination will be applied, where reasonably necessary, by the Administrative Law Judge conducting the hearing. The Administrative Law Judge may exclude irrelevant, immaterial, or unduly repetitious evidence.
(c) The Administrative Law Judge should issue a written decision within 90 days of the close of the hearing record. The Administrative Law Judge's decision constitutes final agency action unless, within 15 days from receipt of the decision, a party dissatisfied with the decision files a petition for review with the Administrative Review Board, specifically identifying the procedure, fact, law or policy to which exception is taken. Any exception not specifically urged is deemed to have been waived. A copy of the petition for review must be sent to the opposing party at the same time. Thereafter, the decision of the Administrative Law Judge remains final agency action unless the Administrative Review Board, within 30 days of the filing of the petition for review, notifies the parties that it has accepted the case for review. The Administrative Review Board may set a briefing schedule or decide the matter on the record. The Administrative Review Board must decide any case it accepts for review within 180 days of the close of the record. If not so decided, the Administrative Law Judge's decision constitutes final agency action.
Nothing in this part or in any apprenticeship agreement will operate to invalidate:
(a) Any apprenticeship provision in any collective bargaining agreement between employers and employees establishing higher apprenticeship standards; or
(b) Any special provision for veterans, minority persons, or women in the standards, apprentice qualifications or operation of the program, or in the apprenticeship agreement, which is not otherwise prohibited by law, Executive Order, or authorized regulation.
(a) This section is not applicable to any complaint concerning discrimination or other equal opportunity matters; all such complaints must be submitted, processed and resolved in accordance with applicable provisions in 29 CFR part 30, or applicable provisions of a State Plan for Equal Employment Opportunity in Apprenticeship adopted pursuant to 29 CFR part 30 and approved by the Department.
(b) Except for matters described in paragraph (a) of this section, any controversy or difference arising under an apprenticeship agreement which cannot be adjusted locally and which is not covered by a collective bargaining agreement, may be submitted by an apprentice, or the apprentice's authorized representative, to the appropriate Registration Authority, either Federal or State, which has registered and/or approved the program in which the apprentice is enrolled, for review. Matters covered by a collective bargaining agreement are not subject to such review.
(c) The complaint must be in writing and signed by the complainant, or authorized representative, and must be submitted within 60 days of the final local decision. It must set forth the specific matter(s) complained of, together with relevant facts and circumstances. Copies of pertinent documents and correspondence must accompany the complaint.
(d) The Office of Apprenticeship or recognized State Apprenticeship Agency, as appropriate, will render an opinion within 90 days after receipt of the complaint, based upon such investigation of the matters submitted as may be found necessary, and the record before it. During the 90-day period, the Office of Apprenticeship or recognized State Apprenticeship Agency will make reasonable efforts to effect a satisfactory resolution between the parties involved. If so resolved, the parties will be notified that the case is closed. Where an opinion is rendered, copies will be sent to all interested parties.
(e) Nothing in this section precludes an apprentice from pursuing any other remedy authorized under another Federal, State, or local law.
(f) A State Apprenticeship Agency may adopt a complaint review procedure differing in detail from that given in this section provided it is submitted for review and approval by the Office of Apprenticeship.
(a)
(1) The State Apprenticeship Agency must submit a State apprenticeship law, whether instituted through statute, Executive Order, regulation, or other means, that conforms to the requirements of 29 CFR parts 29 and 30;
(2) The State Apprenticeship Agency must establish and continue to use a State Apprenticeship Council, which operates under the direction of the State Apprenticeship Agency. The State Apprenticeship Council may be either regulatory or advisory and must meet the following requirements:
(i) It must be composed of persons familiar with apprenticeable occupations, and
(ii) It must include an equal number of representatives of employer and of employee organizations and include public members who shall not number in excess of the number named to represent either employer or employee organizations;
(3) The State Apprenticeship Agency must submit a State Plan for Equal Employment Opportunity in Apprenticeship that conforms to the requirements published in 29 CFR part 30;
(4) The State Apprenticeship Agency's submission must include a description of the basic standards, criteria, and requirements for program registration and/or approval, and
(5) The State Apprenticeship Agency's submission must include a description of policies and operating procedures which depart from or impose requirements in addition to those prescribed in this part.
(b)
(1) Establish and maintain an administrative entity (the State Apprenticeship Agency) that is capable of performing the functions of a Registration Agency under 29 CFR part 29;
(2) Provide sufficient resources to carry out the functions of a Registration Agency, including: Outreach and education; registration of programs and apprentices; provision of technical assistance, and monitoring as required to fulfill the requirements of this part;
(3) Clearly delineate the respective powers and duties of the State office, the State Apprenticeship Agency, and the State Apprenticeship Council;
(4) Establish policies and procedures to promote equality of opportunity in apprenticeship programs pursuant to a State Plan for Equal Employment Opportunity in Apprenticeship which adopts and implements the requirements of 29 CFR part 30, and to require apprenticeship programs to operate in conformity with such State Plan and 29 CFR part 30;
(5) Prescribe the contents of apprenticeship agreements, in conformity with § 29.7;
(6) Ensure that the registration of apprenticeship programs occurs only in apprenticeable occupations, as provided in § 29.4, including occupations in high growth and high demand industries;
(7) Accord reciprocal approval for Federal purposes to apprentices, apprenticeship programs and standards that are registered in other States by the Office of Apprenticeship or a Registration Agency if such reciprocity is requested by the apprenticeship program sponsor. Program sponsors seeking reciprocal approval must meet the wage and hour provisions and apprentice ratio standards of the reciprocal State;
(8) Provide for the cancellation and/or deregistration of programs, and for temporary suspension, cancellation, and/or deregistration of apprenticeship agreements; and
(9) Submit all proposed modifications in legislation, regulations, policies and/or operational procedures planned or anticipated by a State Apprenticeship Agency, either at the time of application for recognition or subsequently, to the Office of Apprenticeship for review and obtain the Office of Apprenticeship's concurrence prior to implementation.
(c)
(d)
(e)
(1) On-site reviews conducted by Office of Apprenticeship staff.
(2) Self-assessment reports, as required by the Office of Apprenticeship.
(3) Review of State Apprenticeship Agency legislation, regulations, policies, and/or operating procedures required to be submitted under paragraphs (a)(1), (a)(5) and (b)(9) of this section for review and approval as required under § 29.13(a).
(4) Determination whether, based on the review performed under paragraphs (e)(1), (2), and (3) of this section, the State Registration Agency is in compliance with part 29. Notice to the State Registration Agency of the determination will be given within 45 days of receipt of proposed modifications to legislation, regulations, policies, and/or operational procedures required to be submitted under paragraphs (a)(1), (a)(5) and (b)(9) of this section.
(f)
(i) Receive technical assistance from the Office of Apprenticeship in an effort to remedy the non-conforming activity; and
(ii) Be placed on “Conditional Recognition” for a period of 45 days during which the State Apprenticeship Agency must submit a corrective action plan to remedy the non-conforming activity to the Office of Apprenticeship. Upon request from the State Apprenticeship Agency, for good cause, the 45-day period may be extended.
(2) Failure to comply with these requirements will result in rescission of recognition, for Federal Purposes as provided under § 29.14.
(g)
(1) The procedures contained in 29 CFR part 18 will apply to the disposition of the request for review except that:
(i) The Administrative Law Judge will receive, and make part of the record, documentary evidence offered by any party and accepted at the hearing. Copies thereof will be made available by the party submitting the documentary evidence to any party to the hearing upon request.
(ii) Technical rules of evidence will not apply to hearings conducted under this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination will be applied, where reasonably necessary, by the Administrative Law Judge conducting the hearing. The Administrative Law Judge may exclude irrelevant, immaterial, or unduly repetitious evidence.
(2) The Administrative Law Judge should submit proposed findings, a recommended decision, and a certified record of the proceedings to the Administrative Review Board within 90 calendar days after the close of the record.
(3) Within 20 days of the receipt of the recommended decision, any party may file exceptions. Any party may file a response to the exceptions filed by another party within 10 days of receipt of the exceptions. All exceptions and responses must be filed with the Administrative Review Board with copies served on all parties and amici curiae.
(4) After the close of the period for filing exceptions and responses, the Administrative Review Board may issue a briefing schedule or may decide the matter on the record before it. The Administrative Review Board must decide any case it accepts for review within 180 days of the close of the record. If not so decided, the Administrative Law Judge's decision constitutes final agency action. The decision of the Administrative Review Board constitutes final action by the Department.
(h)
(1) Send a formal notice of intent to the Administrator of the Office of Apprenticeship;
(2) Provide all apprenticeship program standards, apprenticeship agreements, completion records, cancellation and suspension records, Equal Employment Opportunity Compliance Review files and any other documents relating to the State's apprenticeship programs, to the Department; and
(3) Cooperate fully during a transition period.
(i)
(j)
(2) In the event that a State Apprenticeship Agency is not recognized by the Office of Apprenticeship for Federal purposes or that such recognition has been withdrawn, or if no State Apprenticeship Agency exists, registration with the Office of Apprenticeship may be requested. Such registration must be granted if the program is conducted, administered and operated in accordance with the requirements of this part and the equal opportunity regulation in 29 CFR part 30, as amended.
The recognition for Federal purposes of a State Apprenticeship Agency may be withdrawn for the failure to fulfill, or operate in conformity with, the requirements of parts 29 and 30. Derecognition proceedings for reasonable cause will be instituted in accordance with the following:
(a) Derecognition proceedings for failure to adopt or properly enforce a State Plan for Equal Employment Opportunity in Apprenticeship must be processed in accordance with the procedures prescribed in 29 CFR part 30.
(b) For causes other than those under paragraph (a) of this section, the Office of Apprenticeship must notify the respondent and appropriate State sponsors in writing, by certified mail, with return receipt requested. The notice must set forth the following:
(1) That reasonable cause exists to believe that the respondent has failed to fulfill or operate in conformity with the requirements of this part;
(2) The specific areas of nonconformity;
(3) The needed remedial measures; and
(4) That the Office of Apprenticeship proposes to withdraw recognition for Federal purposes unless corrective action is taken, or a hearing request mailed, within 30 days of the receipt of the notice.
(c) If, within the 30-day period, the State Apprenticeship Agency:
(1) Acknowledges that the State is out of conformity, specifies its proposed remedial action and commits itself to remedying the identified deficiencies, the Office of Apprenticeship will suspend the derecognition process to allow a reasonable period of time for the State Apprenticeship Agency to implement its corrective action plan.
(i) If the Office of Apprenticeship determines that the State's corrective action has addressed the identified concerns, the Office of Apprenticeship must so notify the State and the derecognition proceedings shall be terminated.
(ii) If the Office of Apprenticeship determines that the State has not addressed or failed to remedy the identified concerns, the Administrator must notify the State, in writing, of its failure, specifying the reasons therefore, and offer the State an opportunity to request a hearing within 30 days.
(2) Fails to comply or to request a hearing, the Office of Apprenticeship shall decide whether recognition should be withdrawn. If the decision is in the affirmative, the Administrator must begin the process of transferring registrations in paragraph (d).
(3) Requests a hearing. The Administrator shall refer the matter to the Office of Administrative Law Judges. An Administrative Law Judge will convene a hearing in accordance with
(d) If the Administrative Review Board determines to withdraw recognition for Federal purposes or if the Office of Apprenticeship has decided that recognition should be withdrawn under paragraph (c)(2) of this section, the Administrator must:
(1) Notify the registration agency and the State sponsors of such withdrawal and effect public notice of such withdrawal.
(2) Notify the sponsors that, 30 days after the date of the order withdrawing recognition of the State's registration agency, the Department shall cease to recognize, for Federal purposes, each apprenticeship program registered with the State Apprenticeship Agency, unless within that time, the sponsor requests registration with the Office of Apprenticeship.
(e) In the event that a State Apprenticeship Agency is not recognized by the Office of Apprenticeship for Federal purposes or that such recognition has been withdrawn, or if no State Apprenticeship Agency exists, apprenticeship program sponsors may request registration with the Office of Apprenticeship in accordance with the following:
(1) The Office of Apprenticeship may grant the request for registration on an interim basis. Continued recognition will be contingent upon its finding that the State apprenticeship program is operating in accordance with the requirements of this part and of 29 CFR part 30.
(2) The Office of Apprenticeship must make a finding on this issue within 30 days of receipt of the request.
(3) If the finding is in the negative, the State sponsor must be notified in writing that the interim registration with the Office of Apprenticeship has been revoked and that the program will be deregistered unless the sponsor requests a hearing within 15 days of the receipt of the notice. If a hearing is requested, the matter will be forwarded to the Office of Administrative Law Judges for a hearing in accordance with § 29.10.
(4) If the finding is in the affirmative, the State sponsor must be notified in writing that the interim registration with the Office of Apprenticeship has been made permanent based upon compliance with the requirements of this part.
(f) If the sponsor fails to request registration with the Office of Apprenticeship, the written notice to such State sponsor must further advise the recipient that any actions or benefits applicable to recognition for Federal purposes are no longer available to the participants in its apprenticeship program as of the date 30 days after the date of the order withdrawing recognition.
(g) Such notice must also direct the State sponsor to notify, within 15 days, all its registered apprentices of the withdrawal of recognition for Federal purposes; the effective date thereof; and that such withdrawal removes the apprentice from coverage under any Federal provision applicable to their individual registration under a program recognized or registered by the Secretary of Labor for Federal purposes. Such notice must direct that all apprentices are referred to the Office of Apprenticeship for information about potential transfer to other registered apprenticeship programs.
(h) Where a State Apprenticeship Agency's recognition for Federal purposes has been withdrawn; the State must:
(1) Provide all apprenticeship program standards, apprenticeship agreements, completion records, cancellation and suspension records, Equal Employment Opportunity Compliance Review files and any other documents relating to the State's apprenticeship programs, to the Department; and
(2) Cooperate fully during a transition period.
(i) A State Apprenticeship Agency whose recognition has been withdrawn under this part may have its recognition reinstated upon presentation of adequate evidence that it has fulfilled the requirements established in § 29.13(i) and § 29.14(g) and (h) and is operating in conformity with the requirements of this part.
Office of Elementary and Secondary Education, Department of Education.
Final regulations.
The Secretary amends the regulations governing programs administered under Part A of Title I of the Elementary and Secondary Education Act of 1965, as amended, to clarify and strengthen current Title I regulations in the areas of assessment, accountability, public school choice, and supplemental educational services.
These regulations are effective November 28, 2008.
Zollie Stevenson, Jr., Director, Student Achievement and School Accountability Programs, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 3W230, Washington, DC 20202–6132. Telephone: (202) 260–1824.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1–800–877–8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
These regulations amend regulations in 34 CFR part 200, implementing certain provisions of Title I, Part A of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB), which are designed to help disadvantaged children meet high academic standards. On April 23, 2008, the Secretary published a notice of proposed rulemaking (NPRM) for the Title I, Part A program in the
These final regulations reflect an effort to respond to the results of six years of implementation of the reforms introduced into the ESEA by NCLB. The accountability reforms implemented during that time—including annual testing in reading and mathematics, school and local educational agency (LEA) accountability for the achievement of all students (including students in certain subgroups), the measurement of school performance and identification for improvement where necessary, and the provision of public school choice and supplemental educational services (SES) options to parents and their children—have resulted in fundamental changes in the way that States and LEAs approach the challenge of educating all students to high standards. Parents and educators now have more information and data than ever before on how our schools are performing and where schools and LEAs need to make changes. Superintendents, principals, and teachers are hard at work developing and implementing strategies for raising student achievement and improving school performance, including by fundamentally restructuring chronically poor-performing schools. Nearly all States are reporting increases in student achievement, as measured by their own assessments in reading and mathematics in grades 3 through 8 and high school, and all States have put in place comprehensive plans for ensuring that all students are proficient in reading and mathematics by 2014.
These final regulations build on and strengthen the advances States have made with their assessment and accountability systems. We believe a small number of significant regulatory changes can make a real difference in sustaining and advancing the reforms brought about by NCLB, pending reauthorization of the ESEA. The final regulations reflect careful consideration of comments we received on our proposed regulations and include a number of changes made in response to those comments, while remaining consistent with the policy goals of the NPRM.
The most far-reaching change in these regulations is in how States, LEAs, and schools are held accountable for graduating students from high school. We believe that establishing a uniform and more accurate measure of calculating graduation rate that is comparable across States is a critical and essential step forward in improving high school accountability. New requirements governing the provision of SES and public school choice will help ensure that parents and students are informed of their options in a timely and effective manner and that LEAs make effective use of their funds to provide public school choice and SES. The changes to the regulations regarding SES will also help ensure that SES providers offer high-quality services. Changes addressing the inclusion of student subgroups in school and LEA adequate yearly progress (AYP) determinations will ensure greater accountability for the achievement of all groups of students. Amendments to the regulations governing restructuring of schools in improvement will help ensure that LEAs take significant reform actions to improve chronically underperforming schools, as required by the statute. Requiring the inclusion of State data from the National Assessment of Educational Progress (NAEP) on State and local report cards will provide parents and the public with additional important information about the performance of the students in their State.
The other provisions of these final regulations make important clarifications or technical changes to existing policies. The regulations permit all States to request authority to include measures of student growth in their AYP determinations so long as States' growth proposals meet certain criteria. The regulations also codify the creation of the National Technical Advisory Council (National TAC) and the Department's current policy regarding the identification of schools and LEAs for improvement. Amendments to the assessment regulations clarify that the term “multiple measures” in the statute means that States may use single or multiple question formats, or multiple assessments within a subject area. Lastly, technical changes to the definition of “highly qualified teacher” align the Title I regulations with the Individuals with Disabilities Education Act (IDEA).
In the absence of reauthorization, we believe these final regulations are necessary to further the interests of parents and children and to improve the implementation of NCLB in order to continue progress toward the goal of 100 percent student proficiency in reading and mathematics by 2014.
The following is a summary of the major substantive changes in these final regulations from the regulations proposed in the NRPM. (The rationale for each of these changes is discussed in the
• In § 200.7(a)(2)(iii) (disaggregation of data), the final regulations require each State to submit its revised Consolidated State Application Accountability Workbook (Accountability Workbook), which would include any changes to its minimum group size and other components of AYP, to the Department for peer review in time for any changes
• Section 200.11 (participation in NAEP) clarifies the NAEP data that State and LEA report cards must contain: the percentage of students at each achievement level reported on the NAEP, in the aggregate and, for State report cards, disaggregated for each subgroup described in § 200.13(b)(7)(ii); and participation rates for students with disabilities and limited E
• The final regulations make a number of changes to § 200.19 (other academic indicators). The section is reorganized to separate the requirements for other academic indicators for elementary and middle schools from the requirements for calculating graduation rate (the required “other academic indicator” for high schools). The final regulations maintain the current requirements for the other academic indicators for elementary and middle schools; however, they make a number of changes for calculating graduation rate.
• Section 200.22(b)(1) (National TAC) makes clear that the National TAC must include members who have knowledge of and expertise in designing and implementing standards, assessments, and accountability systems for all students, including students with disabilities and LEP students.
• Section 200.37(b)(5)(ii)(B) (notice of identification for improvement, corrective action, or restructuring) requires an LEA to indicate, in its notice to parents, those SES providers who are able to serve students with disabilities or LEP students.
• Section 200.39(c)(1) (responsibilities resulting from identification for school improvement) requires an LEA to display certain information regarding public school choice and SES on its Web site in a timely manner to ensure that parents have current information. Paragraph (c)(2) requires an SEA to post on its Web site the required information for any
• Section 200.43 (restructuring) contains two changes. First, paragraph (a)(4) makes clear that, if a school begins to implement a restructuring option as a corrective action, the school need not implement a significantly more rigorous and comprehensive reform at the restructuring stage. Second, paragraph (b)(3)(v) clarifies that a major restructuring of a school's governance may include replacing the principal so long as this change is part of a broader reform effort.
• Section 200.44(a)(2) (public school choice) makes clear that an LEA must offer, through the 14-day notice required under § 200.37, the option to parents to transfer their child so that the child may transfer in the school year following the school year in which the LEA administered the assessments that resulted in its identification of the school for improvement, corrective action, or restructuring.
• Section 200.47 (SEA responsibilities for SES) contains several changes.
• Section 200.48 (funding for choice-related transportation and SES) contains several changes.
• Section 200.56 (definition of “highly qualified teacher”) makes clear that a special education teacher is a “highly qualified teacher” under the ESEA if the teacher meets the requirements for a “highly qualified special education teacher” under the Individuals with Disabilities Education Act (IDEA).
In response to the Secretary's invitation in the NPRM, 400 parties submitted comments on the proposed regulations. An analysis of the comments and changes in the regulations since publication of the NPRM follows.
We discuss substantive issues under the sections of the regulations to which they pertain. Generally, we do not address technical or minor changes, and suggested changes that we are not authorized to make under the law.
The requirement that State assessments involve multiple measures of academic achievement is one of a number of requirements in section 1111(b)(3)(C) of the ESEA that
The Secretary does not believe it is necessary or appropriate to refer to specific types of assessments, such as formative assessments, adaptive assessments, and portfolio assessments, in § 200.2(b)(7). The key point is not the type of measure but the fact that any assessment used by a State for accountability determinations must meet the requirements in section 1111(b)(3)(C) of the ESEA and be approved by the Secretary.
Section 1111(b)(2)(C)(v) of the ESEA requires a State to define AYP so that its annual measurable objectives apply to all students as well as to specific subgroups of students—that is, economically disadvantaged students, students from major racial and ethnic groups, students with disabilities, and LEP students. Section 1111(b)(2)(I) of the ESEA makes clear that, for a school or LEA to make AYP, all students as well as each subgroup of students must meet or exceed the State's annual measurable objectives. This emphasis on subgroup accountability is one of the major changes that Congress made to the ESEA's accountability provisions when it enacted NCLB. In fact, as stated in section 1001(3) of the ESEA, one of the primary purposes of NCLB is to close the achievement gap between high- and low-performing students, especially the achievement gaps between minority and non-minority students and between disadvantaged children and their more advantaged peers. This purpose could not be accomplished without subgroup accountability.
Disaggregated accountability is tempered only by the need to ensure statistical reliability and to protect student privacy. Thus, section 1111(b)(2)(C)(v) of the ESEA and § 200.7 do not require accountability determinations by student subgroup if the size of the subgroup is too small to yield statistically reliable information or is such that personally identifiable information about individual students would be revealed. Logically, the larger a State's minimum group size, the less likely that students in a subgroup will constitute an accountability group, particularly at the school level, and that the school will be held accountable for the performance of that subgroup. Thus, it is appropriate that the regulations require States to find the optimal minimum group size that maximizes the inclusion of student subgroups in accountability decisions.
It is important to note that these regulations amend § 200.7(a), which is intended to ensure that the minimum group size that is used by a State to calculate proficiency rates in AYP determinations yields statistically reliable information. Section 200.7(b) of the current regulations includes an additional requirement with which a State must comply when reporting information to the public. Specifically under this section, a State may not report achievement results if the results would reveal personally identifiable information about an individual student in accordance with the Family Educational Rights and Privacy Act (FERPA). 20 U.S.C. 1232g; 34 CFR part 99. Because the threshold (i.e., the number of students) that a State uses to ensure that it does not reveal personally identifiable information is generally lower than the threshold it uses for ensuring its proficiency calculations yield statistically reliable information, a State can, and often does, establish separate minimum group sizes for calculating proficiency rates and for reporting assessment results.
Other commenters argued that a State should be permitted to use confidence intervals along with their minimum group size in making AYP determinations. One commenter stated that a small minimum group size requires larger confidence intervals to make accurate school and LEA AYP determinations. Some commenters, however, stated that confidence intervals exceeding 95 percent are unwarranted. Still other commenters argued that confidence intervals greater than 90 percent should not be allowed.
A State's minimum group size must be large enough to produce statistically reliable information and protect students' privacy, yet small enough to maximize the inclusion of student subgroups in accountability decisions. Further, the Department believes that a State's minimum group size must be considered along with other components of a State's AYP definition. Therefore, § 200.7(a)(2)(ii) requires a State to explain how a State's minimum group size interacts with the other components of its AYP definition to affect the statistical reliability of the data, and to ensure the maximum inclusion of students and student subgroups in AYP determinations.
The National TAC will provide advice to the Department on how a State should consider the interactions of the various components in its AYP definition (such as the interaction of minimum group size and confidence intervals). In addition, external peer reviewers will review the evidence submitted by a State in order to help ensure that the State is establishing a system that leads to statistically sound AYP determinations and also maximizes the inclusion of all students and student subgroups while ensuring student privacy.
A number of other commenters supported proposed § 200.7(a)(2)(ii). Several commenters recommended making information about the exclusion of students from accountability determinations more transparent by requiring a State to report: (a) The results of empirical or simulation studies and the process the State used to select its minimum group size; and (b) the number and percentage of subgroups that made AYP using the “safe harbor” provision or confidence intervals. The commenters recommended including information about the exclusion of students from accountability determinations on State and LEA report cards because the public is more likely to read a report card than an Accountability Workbook.
We disagree that the requirements in § 200.7(a)(2)(ii) are unnecessary or give the impression that a State is concealing data. We believe that the benefits of increasing transparency and accountability greatly outweigh the costs to a State of revising its Accountability Workbook. We address the specific concerns about the costs of revising Accountability Workbooks in the
We do not believe it is necessary to require a State to submit the additional information recommended by the commenters. Although some States may include the information recommended by the commenters in their Accountability Workbook, we believe that States should have flexibility in how they address the requirements in § 200.7(a)(2)(ii). We also do not agree that the information included in a State's Accountability Workbook should be included on State and LEA report cards. The information in § 200.7(a)(2)(ii) that a State is required to submit to the Department is more appropriately provided in the State's Accountability Workbook where the
However, the Department recognizes that it will take some time for the National TAC to provide input on the types of evidence the Secretary should consider in reviewing a State's Accountability Workbook and for the Department to provide guidance to States. Therefore, we have revised § 200.7(a)(2)(iii) to require a State to submit the required information in time for changes to be in effect for school year 2010–2011 AYP determinations using school year 2009–2010 assessment results.
With regard to the commenters' request for additional funding and resources for a State to upgrade its data systems, the Department's Institute of Education Sciences (IES) Statewide Longitudinal Data Systems program has provided almost $122 million to 27 States to design, develop, and implement statewide longitudinal data systems that can accurately manage, analyze, disaggregate, and use individual student data. The President's fiscal year 2009 budget request for this program is $100 million, a significant increase intended to support new awards to States that have not yet received funding, as well as to support the expansion of systems in previously funded States. The 2009 request would support approximately 32 awards for developing longitudinal data systems or expanding existing data systems.
However, several commenters recommended that the regulations encourage, but not require, States to include NAEP results on State and LEA report cards. One commenter maintained that States should have the discretion to determine whether information on the NAEP would be valuable to the public and, if so, how to disseminate it. Several commenters stated that it is unnecessary to require States to include NAEP results on State and LEA report cards because many States already post NAEP results on their Web sites. Other commenters recommended requiring NAEP results to be posted on State and LEA Web sites instead of requiring that they be included on SEA and LEA report cards. One commenter stated that State Web sites are the most appropriate vehicle for making publicly available comparisons of results from State assessments and the NAEP and for communicating the relationship between the NAEP and State assessments. Finally, several commenters stated that this proposed requirement could be viewed as an effort to push States to adopt a national curriculum that is aligned with the standards and curriculum implicit in the NAEP.
The Department does not believe that giving States the option to include NAEP data on State and LEA report cards or requiring only that they post NAEP results on State or LEA Web sites would be sufficient. We believe that including NAEP results on State and LEA report cards provides the greatest transparency and gives parents easy access to an important tool for assessing the educational performance of students in their State. We also do not agree with commenters who stated that requiring the inclusion of NAEP data on State and LEA report cards may be viewed as an effort to push States to adopt a national curriculum aligned with the standards and curriculum implicit in the NAEP. The purpose of requiring State and LEA report cards to include NAEP results is to ensure that NAEP results are easily accessible and available to parents and the public.
We also agree with commenters that the participation rates for students with disabilities and the participation rates for LEP students should be included on
A number of commenters stated that it is important to clarify on report cards, using simple and clear terms, that only limited comparisons can be made between the NAEP results and the results on State assessments and to clearly explain that NAEP results are based on Statewide samples of students and not necessarily on the same students whose results are reported on the State assessments. Several commenters stated that the Department has not provided guidance on how to interpret NAEP results and to explain the differences between the NAEP and State assessments. One commenter asked whether the Department will provide technical assistance to help States accurately interpret and explain the differences between the NAEP and State assessments.
Thus, although Executive Order 12866 encourages agencies to take efforts to reduce regulatory burden, it also recognizes that some burden may be necessary for an agency to achieve its objectives. The Executive Order, therefore, also requires an agency to analyze the costs and the benefits of a regulation and “to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” As we discuss elsewhere in this section, we believe that the benefits of requiring States and LEAs to include NAEP data on their respective report cards significantly outweigh the burden of complying with this requirement. The NAEP is the only nationally representative and continuing assessment of student achievement. We believe that keeping parents and the public informed about student achievement is worth the additional time and resources needed to make this information readily available. Accordingly, we disagree with the commenter that the NAEP requirement conflicts with Executive Order 12866.
Finally, we note that States and LEAs may use their Title I, Part A administrative funds to pay for the staff time and resources needed to make these changes to their report cards, which we expect to be implemented when States and LEAs report the results from assessments administered in the 2008–2009 school year. We address the specific concerns about the costs of making these changes to State and LEA report cards in the
In the meantime, we note that one of the resources upon which the National Mathematics Advisory Panel relied in making its recommendations for NAEP and State tests was the 2007
• Section 200.19(a) sets forth all of the requirements for elementary and middle schools with respect to other academic indicators.
• Section 200.19(b) sets forth all of the requirements for high schools with respect to the other academic indicator—graduation rate.
• Section 200.19(c) incorporates the requirements from current § 200.19(b) regarding additional academic indicators.
• Section 200.19(d) incorporates the requirements from current § 200.19(c) regarding statistical quality of data.
• Section 200.19(e) is substantively unchanged from the current regulation and has been changed only to update cross-references to other paragraphs within this section.
Other commenters, however, opposed our proposal regarding the definition of graduation rate. Several of these commenters suggested that the Department conduct studies of the implications of using an adjusted cohort graduation rate before requiring the use of such a rate for LEA-or school-level accountability determinations. Other commenters stated that the proposed regulations were too prescriptive and punitive and recommended that the Department instead take a broader approach and provide technical assistance to States in the design, development, and implementation of initiatives that would result in improved graduation rates.
Several commenters argued that, while establishing a uniform method for calculating graduation rate is a commendable endeavor, the regulations do not provide for the support system and services necessary to address the causes of low graduation rates. One commenter suggested that any additional focus on graduation rate be coupled with support for research on and development of career and technical education strategies.
An adjusted cohort graduation rate will improve our understanding of the characteristics of the population of students who do not earn regular high school diplomas or who take longer than four years to graduate. An approach that provides technical assistance to States in designing programs to increase high school graduation is not sufficient. Moreover, all 50 States have already agreed to adopt the NGA rate, a rate similar to the four-year adjusted cohort graduation rate, and most States have made significant progress in implementing the rate. NGA's recent report (2008) states that 16 States already use the NGA rate to calculate their high school graduation rate; five more States plan to report the NGA rate in late 2008, eight more in 2009, nine more in 2010, six more in 2011, and one more in 2012; five States are uncertain about their plans to use the NGA rate.
We agree that better and more data alone will not increase graduation rates, but those data will provide States, LEAs, and schools with critical information that is necessary for understanding the reasons for low graduation rates and for designing better programs and services to help students graduate.
One commenter recommended that the graduation rate calculation take into account that some students graduate high school in less than the “standard number of years” and ensure that these students are not counted as dropouts.
We also have revised the regulations in § 200.19(b)(1)(v) to provide that, in addition to calculating a four-year rate, a State may propose to the Secretary for approval an extended-year adjusted cohort graduation rate. This rate is defined as the number of students who graduate in four years or more with a regular high school diploma divided by the number of students who form the adjusted cohort for the four-year rate, accounting for any students who transfer into the cohort by the end of the year of graduation being considered and for students who transfer out, emigrate to another country, or are deceased by the end of that year. A State may calculate one or more extended-year adjusted cohort graduation rates. (For ease of reference, we sometimes refer to the extended-year adjusted cohort graduation rate or rates elsewhere in the preamble as the “extended-year rate.”) The following formula shows the calculation of a five-year extended-year rate reported in the summer of 2007 (based on the class entering 9th grade in the fall of 2002).
Appendix A provides an example of how the four-year and extended-year adjusted cohort graduation rates would be calculated.
One commenter questioned why proof of enrollment in another school would be required when a family moves. The commenter stated that, in these circumstances, a school should be required only to obtain evidence that a family has moved in order to count the student as a transfer. Several commenters suggested that a school or LEA should only be required to have “reasonable evidence” (rather than “official documentation”) that the student has enrolled in a program of study in another school, LEA, or other educational program that culminates in the award of a regular high school diploma. These commenters suggested that “reasonable evidence” that a student has transferred could include: a records request from the receiving high school; an approved application for home schooling, or enrollment in a virtual school or distance education program; signed documentation from the student's parent or legal guardian that the family is moving out of the LEA, State, or country and that the student will be enrolled in school in the new location; and telephone or other personal contact with a responsible adult who verifies that the student's family has moved out of the LEA and that the adult believes the student is attending school elsewhere. These commenters also stated that “reasonable evidence” that a student has died may include a written statement to that effect. One commenter recommended that, if a student transfers to another school in the same State, confirmation that the student appears on the receiving school's enrollment list in the State's student record system should be required.
With respect to a student who transfers out, in particular, new § 200.19(b)(1)(ii)(B)(
Although the Secretary appreciates that it may be difficult for a school or LEA to confirm through official written documentation that a student has transferred to another school or educational program that awards a regular high school diploma, we believe that it is critically important for school officials to do so in order to have an accurate measure of the school's and LEA's graduation rates.
With respect to students who are deceased or who have emigrated to another country, the school or LEA also must confirm this fact in writing but need not obtain official documentation. For example, written confirmation of a student who has emigrated might include a school administrator's memo to the student's file, based on a phone conversation with a parent, stating that the student is leaving the country. The Department plans to provide non-regulatory guidance on ways that States can obtain official written documentation of a student's transfer to another school or educational program and can obtain appropriate written confirmation of a student's emigration or death before removing the student from the cohort.
Finally, regarding the comment that it is difficult to confirm the transfer of migrant students, the Department is currently implementing the Migrant Student Information Exchange system. This system contains information on migrant students that can be accessed by all States and LEAs to help ensure that the academic records of these highly mobile students are preserved despite frequent moves, and should be of great assistance to States in need of documentation of the re-enrollment of students in another school or in an educational program that results in the award of a regular high school diploma.
With respect to commenters who requested that we specifically prohibit the removal of students whose status cannot be confirmed as “errors,” we believe the regulation is clear that students may not be removed from the cohort in this situation and believe that no further change in the regulations is necessary.
Some commenters argued that modified or special education diplomas should be considered regular high school diplomas because not including these types of diplomas penalizes high schools for meeting the needs of students with disabilities. Several commenters recommended that the regulations explain that States have the option to craft a definition of “regular diploma” that encompasses high-quality accredited alternative education programs or special-purpose schools with curricula that are aligned with State academic standards and offer students a regular high school diploma based on graduation requirements that may differ from those applied to other schools in the State. One commenter recommended that States be more transparent about the requirements for earning a regular high school diploma.
Under the heading,
• New § 200.19(b)(4) provides that States must calculate, for reporting purposes, the four-year adjusted cohort graduation rate, in the aggregate and disaggregated by subgroup, beginning with report cards providing assessment results for the 2010–2011 school year.
• New § 200.19(b)(5) requires a State to calculate the four-year rate, in the aggregate and disaggregated by subgroups, for purposes of determining AYP, beginning with AYP determinations based on school year 2011–2012 assessment results.
Commenters made various suggestions as to the information a State should be required to provide, such as an affirmation that it lacks the data system to report the data; an explanation of what changes will need to be made to its data systems; the transitional rate the State will use in the meantime; a timeline for creating the capacity and using the data; and an agreement to file interim reports on its progress.
Any State that cannot meet the 2010–2011 deadline for reporting the four-year adjusted cohort graduation rate and does not submit a request for an extension by March 2, 2009, which is subsequently approved by the Secretary, will be out of compliance with the regulations. Should a State not meet the 2010–2011 deadline, the Secretary has the authority to take appropriate action, including, but not limited to placing a condition on a State's Title I, Part A grant, requiring the State to enter into a Compliance Agreement with the Department, or withholding Title I, Part A funds.
• New § 200.19(b)(7)(i) provides that, if a State cannot meet the deadline for reporting the four-year rate in § 200.19(b)(4)(ii)(A), the State may request an extension of that deadline from the Secretary.
• New § 200.19(b)(7)(ii) requires that, to receive an extension, a State must submit, by March 2, 2009, evidence satisfactory to the Secretary demonstrating that the State cannot meet the deadline in § 200.19(b)(4)(ii)(A), and a detailed plan and timeline addressing the steps the State will take to implement, as expeditiously as possible, a graduation rate consistent with § 200.19(b)(1)(i) through (iv).
Other commenters recommended alternatives to using the AFGR. Some commenters recommended that States be allowed to continue using their current graduation rate definitions until they can implement the adjusted cohort graduation rate. One commenter suggested that the AFGR be required as a transitional measure only for States that, by 2009, have not collected at least two years of data necessary to compute the adjusted cohort graduation rate. One commenter recommended the use of what the commenter said was a more reliable estimate of graduation rate, the Cumulative Promotion Index (CPI) method. Another commenter recommended that States be allowed to propose, for Secretarial approval, an interim rate that measures or estimates the number of graduates compared to the number of students in a high school's entering grade; does not use dropout data; counts as graduates only those students who receive a regular high school diploma; can be disaggregated; and can be used on an annual basis to determine a rate of growth.
Some commenters noted that the term “continuous and substantial improvement” in proposed § 200.19(d)(1)(ii) (new § 200.19(b)(3)(i)(B)) was not defined and suggested that the regulations indicate more clearly what standards States' goals and targets would be expected to meet. Many commenters suggested changes intended to ensure adoption of rigorous goals and targets, including requiring all States to use the same goals and targets (in part, to promote comparability), requiring “high, ambitious end goals” and growth targets, and requiring States to set a minimum increase in the rate each year that is “aggressive, attainable, and uniform.”
Other recommendations included adding specific goals (e.g., 90 percent) and targets (e.g., three percent increase annually), requiring higher targets for five-year graduation rates than for four-year rates, setting targets that would eliminate subgroup differences in graduation rates within four years, or establishing goals that reflect the economic needs of a State's employers.
On the other hand, one commenter supported flexibility in this area and urged the Department not to impose rigid standards for approving a State's goal and targets. The commenter requested that the Department use a transparent peer review process and permit States to use a variety of approaches in setting their goals and targets, including, for example, goals that increase over time and definitions of progress that use an averaging model.
We agree that the proposed regulations should have been clearer in requiring States to set a single graduation goal and to set specific targets towards meeting or exceeding that goal. Therefore, we have amended proposed § 200.19(d)(1) (new § 200.19(b)(3)(i)) to require States to set a single graduation rate goal that represents the rate the State expects all high schools in the State to meet and to set annual graduation rate targets that reflect continuous and substantial improvement from the prior year toward meeting or exceeding the graduation rate goal.
Regarding questions about the Department's role in approving States' goal and targets, the final regulations require each State to submit its graduation rate goal and targets to the Department as part of its revised Accountability Workbook, which will be peer reviewed.
• Section 200.19(b)(3)(i)(A) requires a State to set a single graduation rate goal that represents the rate it expects all high schools in the State to meet.
• Section 200.19(b)(3)(i)(B) requires a State to set annual graduation rate targets that reflect continuous and substantial improvement from the prior year toward meeting or exceeding the State's goal.
We also have added new § 200.19(b)(6)(i), which requires each State to revise its Accountability Workbook to include the following:
• The State's graduation rate definition that the State will use to determine AYP based on school year 2009–2010 assessment results (new § 200.19(b)(6)(i)(A)).
• The State's progress toward meeting the deadline in § 200.19(b)(4)(ii)(A) for calculating and reporting the graduation rate defined in § 200.19(b)(1)(i) through (iv) (new § 200.19(b)(6)(i)(B)).
• The State's graduation rate goal and targets (new § 200.19(b)(6)(i)(C)).
• An explanation of how the State's graduation rate goal represents the rate the State expects all high schools in the State to meet and how the State's targets demonstrate continuous and substantial improvement from the prior year toward meeting or exceeding the goal (new § 200.19(b)(6)(i)(D)).
• The graduation rate for the most recent school year of the high school at the 10th percentile, the 50th percentile, and the 90th percentile in the State, ranked in terms of graduation rate (new § 200.19(b)(6)(i)(E)).
• If a State uses an extended-year adjusted cohort graduation rate, a description of how it will use that rate with its four-year rate to determine whether its schools and LEAs have made AYP (new § 200.19(b)(6)(i)(F)).
In addition, we have added new § 200.19(b)(6)(ii) to require each State to submit, consistent with the timeline in § 200.7(a)(2)(iii), its revised Accountability Workbook to the Department for technical assistance and peer review.
One commenter suggested that States be permitted to set different goals for different schools based on each school's present level of performance, rather than one statewide goal. This commenter suggested that setting the same goal, with the same time frame, for a high school that currently has a graduation rate of 60 percent and a high school with a current graduation rate of 80 percent means that the bar is set too high for the first school and too low for the second school.
At the same time, we believe it is appropriate to require each State to include additional information on its graduation rate goal and targets in its Accountability Workbook. Therefore, as noted earlier, we have amended the final regulations to require each State to include in its Accountability Workbook, in addition to the State's graduation rate goal and targets, an explanation of how the State's graduation rate goal represents the rate the State expects all high schools to meet and of how the State's targets demonstrate continuous and substantial improvement from the prior year toward meeting or exceeding the goal. In order for the Department and the public to consider the approximate number of years it will take for a State to reach its graduation rate goal, we are also requiring States to include in their Accountability Workbook, the graduation rate of the school at the 10th percentile, the 50th percentile, and the 90th percentile in the State (ranked in terms of graduation rate). We believe these three points depict the range of graduation rates among a State's high schools and provide context for considering the goal and targets the State has chosen.
For example, a State might report in its Accountability Workbook that it proposes to set its graduation rate goal at 90 percent and its target as a five percent increase per year, and that the school at the 10th percentile has a graduation rate of 50 percent, which would indicate that the State will hold its lowest-performing schools accountable for reaching the State's graduation rate goal in at least eight years.
We believe it is important that a State have the flexibility to consider how to use its four-year rate and an extended-year rate in AYP calculations, subject to peer review and approval by the Secretary. Therefore, as previously noted, we have added new § 200.19(b)(6)(i)(F) to require a State that uses an extended-year graduation rate to submit to the Department, for technical assistance and peer review, a description, in its Accountability Workbook, of how it will use an extended-year rate along with its four-year rate to determine whether its schools and LEAs make AYP.
Many commenters opposed the requirement to use disaggregated data in AYP determinations because they believed more schools and LEAs would not make AYP based on disaggregated data. Other commenters opposed the regulation because, they claimed, it would disproportionately affect the most diverse schools. One commenter argued that this requirement increases the Federal role in education, rather than diminishing it, and focuses on process instead of achievement. One commenter urged caution because of the likely variability in graduation rates among small subgroups, while another claimed that verifying disaggregated results could make it difficult for a State to release AYP results before the start of the school year.
The Secretary has modified the timeline for disaggregating graduation rate data in the final regulations to require States to report disaggregated data for the four-year adjusted cohort graduation rate one year before disaggregated data are required for AYP determinations. The Secretary believes that this timeline will enable a State to resolve any data quality and accuracy issues associated with calculating the four-year rate and disaggregating the results prior to using those disaggregated results to determine AYP based on school year 2011–2012 assessment results.
States that cannot meet the 2010–2011 deadline for calculating the four-year rate and receive an extension from the Secretary, as provided in new § 200.19(b)(7)(iii), must make AYP determinations using a transitional graduation rate, as provided in new § 200.19(b)(2), in the aggregate and disaggregated by subgroups at the same time as States that implement the four-year rate—that is, for AYP determinations based on school year 2011–2012 assessment results.
• New § 200.19(b)(4)(ii)(A) requires reporting the four-year adjusted cohort graduation rate in the aggregate and disaggregated by subgroups at the high school, LEA, and State levels on report cards providing results of assessments administered in the 2010–2011 school year.
• New § 200.19(b)(4)(ii)(B) requires that, if a State adopts an extended-year adjusted graduation cohort rate, the State must report that rate separately from the four-year rate, in the aggregate and disaggregated by subgroups, beginning with the first year for which the State calculates such a rate.
• New § 200.19(b)(4)(ii)(C) requires, prior to school year 2010–2011, reporting of graduation rate, in the aggregate and disaggregated by subgroups, at the high school, LEA, and State levels using either the four-year adjusted cohort graduation rate or the transitional rate.
• New § 200.19(b)(5)(i) requires that a State use the four-year adjusted cohort graduation rate, in the aggregate and disaggregated by subgroups, at the high school, LEA, and State levels for determining AYP beginning with AYP determinations based on school year 2011–2012 assessment results.
• New § 200.19(b)(5)(ii) requires that, prior to school year 2011–2012, a State calculate graduation rate, in the aggregate, using either the four-year adjusted cohort graduation rate or the transitional rate, for determining AYP at the high school, LEA, and State levels, although disaggregation is required for “safe harbor.”
• New § 200.19(b)(7)(iii) provides that a State that cannot meet the school year 2010–2011 deadline for calculating and reporting the four-year rate and receives an extension from the Secretary, must make AYP determinations based on school year 2011–2012 assessment results, in the aggregate and disaggregated by subgroups, using the State's transitional graduation rate under § 200.19(b)(2).
Section 1111(b)(2)(C)(vi) of the ESEA does not explicitly address, and thus does not prohibit, the use of results disaggregated by subgroup for the other academic indicators required for AYP determinations, including graduation rate. We believe that stronger subgroup accountability with respect to graduation rate is needed in order to accomplish the statutory purpose of Title I—that is, “to ensure that
We believe it is important to know how each subgroup performs with respect to graduation rate. Even if it were possible to develop a special formula for assigning students to only one subgroup for the purpose of disaggregating graduation rates, such an approach would skew the data for particular subgroups, because not all students who fall within each subgroup would be counted. However, States may, if they choose, explain on their report cards that students may be counted in more than one subgroup.
If a State adopts an extended-year rate, the extended-year rate must be reported separately from the four-year rate in order to ensure that LEAs and schools are held accountable both for their performance in graduating students in the four-year timeframe and for their success in teaching students who need more time to obtain a regular high school diploma. A State must also report its transitional rate if it does not calculate a four-year adjusted cohort graduation rate before the deadlines specified in new § 200.19(b)(4).
We agree that information about the total number of students in the graduating cohort, the number who graduated in four years, and the number who graduated in more than four years would provide a more complete description of how high schools are addressing the needs of their students. We also believe that the data would provide the Department, States, LEAs, and schools with information that is essential in understanding the reasons for low graduation rates and for designing better programs and services to help students graduate from high school who are at risk of dropping out and those who have dropped out. The Department plans to propose that States report these data to the ED
We agree that the other high school data that commenters recommended States collect and report (e.g., dropout rates; the number of students who age out, become pregnant, or are parents; transfer students; and deceased students) might provide useful information. However, we do not believe that this information (with the exception of dropout rates) is essential and, therefore, decline to add burden to States by requiring them to collect and report these data. We note that data on the number of students who drop out are currently collected as part of the Common Core of Data, and we will continue to collect these data. A disaggregated State-level dropout rate is currently collected as part of the Consolidated State Performance Report. The Department does not anticipate any additional reporting requirements for dropout data at this time.
In new § 200.19(b)(1), the Department has established a uniform method for calculating graduation rate under the ESEA, rather than the multiple methods that were permitted under current § 200.19(a)(1). Section 612(a)(15) of the IDEA requires States to establish performance goals for children with disabilities that are the same as the annual measurable objectives in the State's definition of AYP under the
However, some differences in reported graduation rates are unavoidable. In particular, section 618 of the IDEA requires the Department to collect and report by State each year the number and percentage of children with disabilities, from age 14 through 21, who stopped receiving special education and related services and the reasons why those students stopped receiving special education and related services. Based on these data, the Department considers the ratio of 14 through 21 year old students with disabilities who stopped receiving special education and related services (i.e., the denominator) with the number of students with disabilities who graduated from high school with a regular high school diploma (i.e., the numerator). The Department uses these data to report, for Government Performance Results Act purposes, a rate of children with disabilities who graduate with a regular high school diploma for each State that is computed differently than the graduation rate under new § 200.19(b)(1).
Finally, with regard to the recommendation that the Department align the data reporting requirements related to post-school transition outcomes, we note that, although States are required to report annually to the Department post-secondary outcome data related to students with disabilities as part of their APRs under the IDEA, there is no similar requirement under the ESEA; thus there is nothing to align.
Consistent with section 1111(b)(2)(F) of the ESEA, a State's accountability system must ensure that all students are proficient by 2013–2014. The Secretary's intent in these regulations is to allow States to include accurate measures of individual student academic progress in AYP calculations, not to lower expectations for student achievement.
The criteria established in § 200.20(h)(2) help ensure that States develop growth models that hold schools accountable for the achievement of all students to State standards. It is not sufficient to provide “credit for any growth” as this would not encourage efforts to close the achievement gap, which by definition requires accelerated growth.
In response to the commenters who suggested that States do not have the technical expertise to set appropriate targets for LEP students, § 200.2(h)(2)(i)(A) and (B) specifically requires a State to establish annual targets for individual students that will lead to all students being proficient by the 2013–2014 school year and that the annual targets be based on meeting the State's proficient level of academic achievement on the State's assessments, not on an individual student's background. Therefore, setting growth targets does not require expertise in the achievement of particular groups of students (e.g., LEP students). Rather, States must have the technical understanding of how to establish appropriate student academic growth targets that result in all students reaching grade-level proficiency. Schools must make the greatest gains with the lowest-achieving students because the expectation for reaching or exceeding grade-level proficiency remains the same for all students and groups of students. Thus, in order for a school or LEA to make AYP using its growth model, the achievement gap must continue to close. Moreover, although growth models must measure the growth of students who are at or above proficiency in order to provide information to schools and parents, their performance may not be used to mask the lack of growth for students who are below proficient.
We agree with the comment that students with disabilities who are assessed with an alternate assessment should, to the extent possible, be included in a State's growth model. The Department believes it is possible to include results from alternate assessments based on alternate academic achievement standards in a growth model. Currently, two of the 11 States approved in the growth model pilot include results from their alternate assessments based on alternate academic achievement standards in the State's growth model. The Department strongly encourages States to pursue models that include the results of alternate assessments based on alternate academic achievement standards.
However, we understand that not all alternate assessments can support a growth measure. In many cases, the technical complexity needed for a State's growth model may not be supported by alternate assessments based on alternate or modified academic achievement standards. Alternate assessments based on modified academic achievement standards, in particular, are still in their infancy, not having been permitted until the Department's April 2007 Title I regulations,
With regard to the recommendation to require States to obtain stakeholder input, we agree that stakeholder input in the development of a State's growth model is important, particularly given that most growth models include very complex mathematical formulas and computations that require technical expertise. However, we believe that each State is in the best position to determine how and when to involve stakeholders in the process of developing its growth model.
On August 13, 2008, Secretary Spellings announced the appointment of 16 members to the National TAC. All members are experts in assessment and accountability and represent a range of backgrounds from academicians and researchers to national, State, and local policymakers. The following Web site has a list of the council members and their affiliations:
We do not agree that creation of the National TAC is in direct conflict with the effective and efficient administration of Title I, or that appointments to the National TAC should be made by a new Administration. There are a number of complex technical issues related to State standards, assessments, and accountability systems that we have identified as important issues to be considered by the National TAC. For example, the appropriate use of confidence intervals and performance indexes in determining AYP are issues that would benefit from immediate consideration by the National TAC. In addition, we plan to use the National TAC to advise the Department on how a State should determine an appropriate minimum group size taking into consideration other elements of the State's AYP definition, consistent with the amendments to § 200.7 that we are adopting. We believe that addressing these issues as soon as possible will benefit the Department, States, and, ultimately, students in ensuring that State standards and assessments are of the highest technical quality and that State accountability systems hold schools and LEAs accountable for the achievement of all students.
The members of the National TAC are Special Government Employees (SGEs) and, as such, are subject to all Federal conflict-of-interest laws and regulations. Consistent with FACA and the members' status as SGEs, the Department provided prospective members of the National TAC with information regarding the Department's standards of conduct, including those imposed by Federal conflict-of-interest statutes. As required in § 200.22(b)(4), the Secretary screened nominees for membership on the National TAC for potential conflicts of interest in order to prevent, to the extent possible, such conflicts, or the appearance thereof, in the National TAC's performance of its responsibilities under this section.
We do not agree that the selection of the National TAC members should be made by anyone other than the Secretary. The purpose of the National TAC is to advise the Secretary on key technical issues related to State standards, assessments, and accountability systems. It would defeat the purpose of the National TAC for the Secretary and the Department to select members of the National TAC who did not represent a range of perspectives, from a variety of fields, and with diverse viewpoints. That is why the regulations specifically require that the National TAC include persons who have knowledge of and expertise in the design and implementation of educational standards, assessments, and accountability systems, including experts with technical knowledge related to statistics and psychometrics.
In addition, as required by FACA, the Department has appointed a full-time Federal employee (Designated Federal Official, or DFO) who will (a) call, attend, and adjourn meetings of the National TAC; (b) approve agendas; (c) maintain required records on costs and membership; (d) ensure efficient operations; (e) maintain records for availability to the public; and (f) provide copies of council reports to the Department's Committee Management Officer for forwarding to the Library of Congress.
We believe that the commenter's concerns that a small group of people would have the power to drive assessment policies are unfounded. The National TAC is an advisory committee, not a policy-making body. As such, it will provide the Secretary with advice, which the Secretary will consider along with information from other resources within the Department and from outside sources.
We believe that this detailed information is more appropriate for inclusion in the National TAC's charter and, therefore, decline to follow the commenter's recommendation to include these procedures in the regulations. In response to the commenter who asked about amending the National TAC's procedures, changing the National TAC's procedures would require amending the charter, which can be done if the need arises.
Several commenters misunderstood the proposed regulation and thought that the regulation permitted LEAs to limit identification of schools for improvement to schools that did not meet the AMO in the same subject for the same subgroup every year. In addition, the majority of those who commented opposed the regulatory changes, stating that they are overly rigid and would restrict States' and LEAs' authority and flexibility to target LEAs and schools that are truly in need of improvement. Several commenters stated that the Department is exceeding its administrative authority by promulgating a regulation that is not expressly authorized in the statute.
Section 1116(b)(1) of the ESEA requires an LEA to identify for school improvement any Title I school that fails, for two consecutive years, to make AYP as defined under section 1111(b)(2). Section 1116(c)(3) contains a similar requirement for identifying LEAs for improvement. There is flexibility in section 1111(b)(2) to permit an LEA to identify schools (and a State to identify LEAs) in need of improvement on the basis of not making AYP in the same subject for two consecutive years. This flexibility stems from other provisions in the statute that treat reading and mathematics independently (e.g., separate starting points and AMOs). These provisions recognize that student achievement in reading and mathematics in a State may start at very different points and, thus, that the State would need to establish different trajectories for reaching 100 percent proficiency in each subject. As a result, it makes sense to permit an LEA to identify schools (and a State to identify LEAs) in need of improvement based on not making AYP for two years in the same subject.
Subgroups, on the other hand, are not treated differently in the ESEA and, thus, the statute does not support identifying schools or LEAs for improvement on the basis of “same-subgroup” performance for two consecutive years. Moreover, such a policy would be inconsistent with the accountability provisions in section 1111(b)(2)(C) of the ESEA, which require that each subgroup meet the State's AMOs in each subject each year. The intent of school identification is not to lay blame on a particular group of students, as a “same subgroup/same subject” approach would do, but to identify the instructional and academic areas that need to be improved. A school or LEA that is identified for improvement should look to specific instructional remedies in the subject area, other indicator, or participation rate that resulted in its identification.
Some commenters expressed concern that States may need to amend their assessment policies or renegotiate their contracts with testing companies in order to meet the 14-day notification requirement. Other commenters suggested that the 14-day notification requirement would pressure States to test students too early in the school year or lead to increases in testing and scoring errors and less time to verify assessment results. One commenter suggested that the 14-day notification requirement would complicate LEAs' participation in the Department's SES pilot project, which permits certain LEAs to offer SES to students enrolled in schools that are in year one of improvement status.
With regard to the comment that the 14-day notification requirement would complicate LEAs' participation in the Department's SES pilot project, we disagree. LEAs participating in the SES pilot, which allows schools in the LEA to provide SES or choice to students enrolled in schools that are in year one of improvement status, must follow the same timelines as all other schools, including the 14-day notification requirement.
Several commenters recommended that the Department require, when the State does not notify its LEAs of the final AYP status of their schools at least 21 days in advance of the start of the school year, an LEA to notify parents no later than 14 days after the LEA receives AYP results from the State. One commenter recommended requiring States to give LEAs final AYP determinations for schools 21 or more days before the school year begins, and another recommended requiring LEAs to notify parents no later than seven days before the start of the school year. Another commenter suggested that the Department give States the flexibility to submit plans to the Department on how the State would ensure that more parents have timely information about a school's improvement status and parents' public school choice options; for example, States might propose requiring schools that are currently in school improvement to meet the 14-day notification requirement, while requiring schools that are newly identified for improvement to notify parents by the first day of school. Finally, a commenter suggested that, if an LEA is not able to execute parents' transfer requests within a 14- to 21-day time period, the LEA should be required to notify parents early enough to accommodate parents' requests in a timely manner.
In sum, while we appreciate the differences in State accountability systems and the practical concerns of making timely AYP determinations, we believe that the 14-day notification requirement strikes the appropriate balance to ensure that parents have sufficient time to make an informed decision on whether to transfer their children to another public school.
We agree that there is a discrepancy between the 14-day notification requirement in proposed § 200.37(b)(4)(iv), which was referenced in proposed § 200.44(a)(2)(ii), and the language in proposed § 200.44(a)(2)(i), which would have required an LEA to offer public school choice options not later than the first day of the school year. We have revised § 200.44(a)(2) to eliminate this discrepancy.
One commenter argued that the proposed requirements would be burdensome because LEAs would need to send two notices to parents whose children are eligible for SES—one on SES and one with information about school improvement. Another commenter recommended that LEAs have flexibility to notify parents in the most appropriate manner for the communities they serve. One commenter recommended that the Department clarify that the SES notice may be sent to parents with other materials so long as it is clearly distinguishable from those materials.
Another commenter recommended eliminating the requirement that SES notification letters be “clearly distinguishable” from other information sent home to parents. This commenter suggested that the requirement would draw attention to the SES notice at the expense of other LEA and school information, and that it is not the Department's responsibility to tell LEAs
Other commenters asserted that there is little evidence available on the benefits of SES. Another commenter recommended that the Department modify the regulations to require LEAs to include only those benefits of SES that are based on scientifically based research. Another commenter recommended that § 200.37(b)(5)(ii)(C) be changed to require an LEA to explain only the “potential” benefits of SES until there is research verifying that SES increases student achievement.
Section 200.37(b)(5)(iii) does not require an LEA to send an SES notice that is separate from its school improvement notice; rather, the SES notice must be “distinguishable” from other improvement information. This does not preclude an LEA, therefore, from including the SES notice in the same mailing with other information about school improvement.
We believe that LEAs should have the discretion to determine what information on the benefits of SES to include in the notice to parents. In addition to benefits substantiated by research conducted by the Department or by States, LEAs, or other entities, an LEA's notice could include, for example, the fact that supplemental educational services are available at no cost to parents and make productive use of a student's out-of-school time in a safe environment; that parents may select the approved provider of their choice that best meets their child's academic needs; and that supplemental educational services have the potential to improve a student's academic proficiency.
Two commenters recommended requiring LEAs to post the information no later than 30 days following the end of the previous school year. Another commenter stated that, while LEAs should be able to report information about SES providers at the beginning of a school year, data on the number of students who participate in SES would not be available until the end of the school year.
One commenter recommended that, in addition to the information in proposed § 200.39(c), LEAs should be required to display on their Web sites information on the number of applications for SES, the number of students placed with SES providers, the number of students currently served by SES providers, and the number of students served by each SES provider.
With regard to requiring LEAs to include additional SES data on their Web sites (e.g., the number of applications for SES, the number of students placed with SES providers, and the number of students served by each SES provider), LEAs would have to collect new data. We believe that requiring LEAs to collect and report these new data would add burden on LEAs with little added benefit for parents. Therefore, we decline to require LEAs to report on the additional data recommended by the commenter.
Finally, although some SEAs may display information on public school choice and SES on their Web sites, such information may not be easily accessible to parents seeking information about their own LEA. SEA Web sites typically include information about education at all levels across a State. As a result, many of these sites can be difficult to navigate. LEA Web sites, by contrast, generally are less complex and easier to navigate. In addition, parents are more likely to be familiar with LEA Web sites than SEA Web sites and are more likely to visit the former in order to obtain local school information (e.g., school menus, events calendars). Because the goal of § 200.39(c) is to make information about local Title I public school choice and SES options accessible to parents and other interested parties, we believe this information should be displayed directly on LEA Web sites. Therefore, we decline to permit LEAs to meet the requirements in § 200.39(c) by providing a link to the information on SEA Web sites.
In addition, we encourage LEAs to include, in their list of public school transfer options, any explanatory material necessary to ensure that parents understand the school choices available to their child.
The purpose of § 200.39(c) is to ensure that, in addition to the written notification already required, LEAs make such information widely and publicly available by posting it on their Web sites. The Secretary believes that, to require home delivery of the information required in § 200.39(c) would be overly burdensome for LEAs. Again, the primary vehicle for informing parents of their options—the notice required in § 200.37(b)(4) and (5)—already must be provided directly to parents by such means as the U.S. mail.
As we noted in our discussion of § 200.37, we agree that it is important for parents to know which SES providers are able to serve students with disabilities or LEP students. Accordingly, we have added a requirement in § 200.37(b)(5)(ii)(B) and § 200.47(a)(3)(ii) that an LEA and SEA, respectively, indicate on its list of approved SES providers those providers that are able to serve these students.
In contrast, the amount an LEA must spend on choice-related transportation and SES (an amount equal to at least 20 percent of the LEA's Title I, Part A allocation (the LEA's 20 percent obligation)) and the maximum per-child allocation for SES for each LEA receiving Title I, Part A funds (the LEA's Title I, Part A allocation divided by the number of children in low-income families as determined by the Bureau of the Census) are easily calculated from data the SEA already collects. Posting this information on the SEA's Web site would require adding two columns to the tables that SEAs already prepare showing their final Title I, Part A allocations to LEAs (one column showing 20 percent of each LEA's final allocation and one column dividing the final allocation by the number of students from low-income families in the LEA as determined by the Bureau of the Census). Therefore, because of the minimal burden involved, and because the Secretary believes such information would help give all stakeholders a better understanding of the resources available to support Title I public school choice and SES, we have added a requirement in § 200.47 for each SEA to post on its Web site these amounts for each LEA. However, we believe that making such information available on SEA Web sites is sufficient, and decline to add a similar new requirement for LEAs because it would be unnecessarily duplicative. We also decline to require either SEAs or LEAs to post the statutory minimum allocations for choice-related transportation and SES. The Secretary does not believe that this additional information would be as useful.
Some commenters requested that the statutory restructuring requirements not be enforced until the ESEA is reauthorized. One commenter suggested that a school should not enter restructuring unless the percentage of students scoring below proficient in a subgroup exceeds 35 percent of a school's enrollment. Another commenter stated that the restructuring requirements, in particular, and NCLB, in general, are designed to address the problems of schools in urban areas and not rural schools in high-poverty areas because in rural areas access to SES providers is limited, public school choice is not realistic, and private management companies are not interested in managing rural schools.
Similarly, we disagree with the commenters who suggested that defining restructuring as needing to “address the reason for the school's being in restructuring” is not appropriate because the options for schools under restructuring are alternative governance arrangements, not educational interventions. First, it is unlikely that an LEA would deliberately select a restructuring option that did not best address the reasons the school is in restructuring. Second, and more importantly, it would be imprudent for an LEA to ignore a restructured school's instructional programs. As the Department notes in its 2006 non-regulatory guidance on LEA and school improvement (available at
We have revised § 200.43(a)(4) to clarify that, if an LEA implements a restructuring action that meets the requirements in § 200.43(b) during corrective action, the LEA does not need to implement a significantly more rigorous and comprehensive reform once the school is in restructuring status. In such cases, the LEA should closely examine the school's achievement data to ensure that the interventions implemented during corrective action are having a positive effect on student achievement, and make adjustments as necessary.
We also recognize that there are many reasons that schools may be identified for restructuring and that some schools will need more significant changes than others. Restructuring should not be a “one-size-fits-all” response; rather, schools and LEAs should consider new approaches to professional development of teachers, instruction, and effective organization and management of instruction. We expect that the progression in interventions will look different depending on the reasons for a school entering restructuring.
In addition, the National Center for Education Research (NCER) is currently designing a study to identify promising models for turning around chronically low-performing schools and to provide multiple design options for rigorously evaluating the identified schools' restructuring programs. The results of this study will help inform the field, as well as policy makers, as to what strategies are most effective in turning around low-performing schools.
The Department's Comprehensive Centers are also available to provide assistance to low-performing schools and LEAs. The centers provide technical
We disagree with commenters that the absence of research should obviate the responsibility of States and LEAs to implement any restructuring requirements. Although we recognize the importance of such research and are investing in an evaluation of restructuring approaches, we believe that students in persistently low-performing schools cannot wait for research to be completed before significant actions are taken to turn around their schools.
Section 200.43(b)(3)(v) provides schools with the flexibility to develop different strategies for implementing alternative governance arrangements. Staffing changes may be a part of that approach, and only replacing the principal would be permissible, so long as that is
We do not believe that implementing these regulations will diminish the amount of funding available to serve students because SEAs will not support their monitoring efforts with funds that would otherwise be distributed to LEAs and used for services to students. Rather, SEAs will use their State administrative reservations under Title I, Part A to support the strengthened monitoring efforts required by § 200.47. For that same reason, we do not believe the requirements in § 200.47 represent an unfunded mandate. In addition, the Department notes that SES providers serve students; efforts to ensure the quality and effectiveness of approved providers should not be viewed as a diversion of resources from services to students.
Finally, we do not believe it would be appropriate to structure the new regulations as provider mandates rather than as criteria for SEAs' approval and monitoring of providers. As noted earlier, section 1116(e)(4) of the ESEA clearly assigns SEAs responsibility for approving entities to provide SES in a State and for developing, implementing, and publicly reporting on standards and techniques for monitoring the quality and effectiveness of the services offered by approved providers. The regulations merely clarify what it means for SEAs to implement those statutory requirements.
A State's criteria for monitoring LEAs' implementation of SES should ensure that LEAs meet the requirements in section 1116(e) of the ESEA and § 200.46. We believe that States should have the flexibility to determine how best to share this information with the public, which may include, among other methods, posting the information on a State's Web site.
While many LEAs may be implementing SES requirements effectively, we do not believe that this is uniformly the case in all States. As we stated in the preamble to the NPRM, we believe that requiring States to develop, implement, and publicly report on the criteria they use to monitor LEAs' implementation of SES will help ensure that all SEAs set rigorous and clear expectations for their LEAs, which, in turn, will lead to more effective implementation of SES.
Regarding the recommendation that States conduct focus groups with families to obtain information on SES implementation at the local level, the Secretary believes that parents can provide important information and insights on ways to improve the implementation of SES and encourages States to meet with parents to hear about their experiences with LEA implementation of SES. We believe that States are in the best position, however, to decide how best to obtain feedback from families on LEA implementation practices.
All the requirements in § 200.47(c) are based on the statutory requirements related to the provision of SES. The requirement in § 200.47(c)(1)(i), which requires an SEA to monitor whether a provider's instructional program is consistent with the instruction provided and the content used by the LEA and the SEA, reflects the nearly identical statutory requirement in section 1116(e)(5)(B) of the ESEA. Likewise, the requirement in § 200.47(c)(1)(ii) that SEAs monitor whether a provider's instructional program addresses students' individual academic needs reflects the requirement in section 1116(e)(3)(A) that an LEA develop, in consultation with parents and the provider, a statement of the specific achievement goals the student will achieve through SES. The requirement in § 200.47(c)(1)(iii) that SEAs monitor whether a provider's services are contributing to students' academic proficiency reflects the statutory requirements in sections 1116(e)(4)(D) (withdrawal of approval of providers that do not contribute to increasing the academic proficiency of students served) and 1116(e)(12)(C) (supplementary educational services must be specifically designed to increase the academic achievement of eligible children). Finally, the requirement in § 200.47(c)(1)(iv) that SEAs monitor the alignment of SES with the State's academic content and student academic achievement standards is consistent with the requirement in section 1116(e)(5)(B) of the ESEA. Given the direct statutory authority for each regulatory provision, the Secretary has clearly not exceeded her regulatory authority in section 1901 of the ESEA.
The requirements in § 200.47(c)(2) are conditional, in that they require the information to be considered by an SEA in monitoring approved providers only if such information is available. For example, while results from parent surveys can provide important information about the quality of a provider's services, § 200.47(c)(2)(i) does not require an SEA to conduct a parent survey. Rather, § 200.47(c)(2)(i) requires that an SEA take this information into consideration if such information exists. As a result, these regulatory provisions also do not exceed the Secretary's regulatory authority.
Regarding concerns that parent surveys may reflect parent approval of non-academic benefits of SES or be inconsistent with NCLB's focus on student academic performance, § 200.47(b)(3)(ii) and (c)(2)(i) specifically requires that a State consider parent surveys and recommendations (if any) regarding the success of the provider's instructional program in increasing student achievement. We do not believe that the regulations should include incentives to ensure that parent surveys are considered in approving providers. Section 200.47(b)(3)(ii) and (c)(2)(i) clearly states that SEAs must consider parent recommendations or results from parent surveys, if any are available.
With regard to the question of what the Department would consider suitable evidence for satisfying the requirement to consider parent surveys or recommendations, if any, we believe that a State should have the discretion to determine the evidence that is most appropriate and suitable given the manner in which SES is implemented in its LEAs. For example, a State that has providers from small, local community-based organizations might obtain parent recommendations in a manner that differs from a State that has a few large, for-profit providers.
One commenter expressed concern that the monitoring and evaluation of providers could be based on evidence from the provider's own evaluations and feedback from parents, with minimal regard for rigorous, high-quality, and valid evaluations. Several commenters expressed concern that providers would be permitted to use self-reported data to demonstrate effectiveness, rather than results on State assessments. However, one commenter recommended that SEAs be prohibited from taking into consideration student performance on State assessments when they consider whether to continue or withdraw approval of a provider. The commenter stated that the number of hours of service provided through SES is not sufficient to affect student achievement on a State assessment. Another commenter suggested that SEAs establish the minimum number of hours of SES that a student must receive before the student's test scores are included in an evaluation of a provider's effectiveness.
The requirement to consider evaluation results, if any are available, should not be confused with the requirement to evaluate the quality and effectiveness of each provider. Using evaluation results is one, but by no means the only, way to judge a provider's effectiveness. We agree that the results of student performance on State assessments may not, by themselves, be a complete and satisfactory indicator of the effectiveness of SES. However, nothing in the statute or regulations would prevent a State from considering student performance on a State assessment to evaluate provider effectiveness, or establishing a minimum number of hours of SES to be completed before the student's test scores are included in an evaluation of providers. We believe these decisions are best left to the discretion of each SEA and, therefore, decline to define the specific evaluation methods States may use in evaluating the success of a provider's instructional program in improving student achievement.
We agree that input from teachers and administrators, particularly those who have direct experience with providers and who are in a position to assess the effectiveness of their instructional programs, could contribute valuable information to the provider approval process. However, the Secretary believes that SEAs are in the best position to decide on the additional criteria they will use to evaluate a provider's instructional program and, therefore, declines to require all States to consider staffing information or recommendations from teachers and administrators in evaluating a provider's program.
Regarding an LEA's ability to terminate a provider, section 1116(e)(3)(C) of the ESEA permits LEAs to terminate an individual student's agreement with a provider if the provider is unable to meet the goals and timetables in the agreement established with the provider. LEAs may also terminate a contract if the provider violates other provisions in the contract, such as provisions regarding student progress reports, invoicing payment for services, preserving student privacy, and complying with applicable health, safety, and civil rights laws. Further, LEAs may terminate a contract if a provider fails to meet additional administrative or operational terms that may be included in the contract, such as conducting background checks on the provider's employees, provided those terms are reasonable, do not subject the provider to more stringent requirements than apply to other contractors of the LEA, and do not have the effect of inappropriately limiting educational options for students and their parents. However, it is not within an LEA's authority to remove a provider from the approved provider list or to terminate an agreement with a provider for failing to raise student achievement unless the provider has failed to meet the goals and timetables specified in the individual agreement. Only an SEA may withdraw approval of a provider if, for two consecutive years, the provider does not contribute to increasing the academic proficiency of the students it serves (see section 1116(e)(4)(D) of the ESEA).
We decline to adopt the suggestion of one commenter that we establish procedures to allow LEAs to file complaints against SES providers with the SEA. Although it is essential that States facilitate open communication between their LEAs and providers so that disagreements can be resolved quickly and appropriately, we believe that States must have the discretion to establish procedures to receive feedback from their LEAs regarding a provider's actions in delivering SES.
The Secretary agrees that it is important to engage community-based organizations in providing SES. Section 1116(e)(4)(A) of the ESEA and § 200.47(a)(1)(i) already require a State to consult with LEAs, parents, teachers, and other interested members of the public in order to promote maximum participation by providers so that parents have as many choices of SES providers as possible. We believe it is extremely important for parents, teachers, and members of the public to encourage and recruit community-based organizations to apply to their State to become approved SES providers. In addition, States should ensure that they create ways to tap this potential pool of SES providers.
SES providers include a wide variety of agencies and organizations, including LEAs, large national operators, and small local organizations that focus on providing SES to particular groups of students. For example, a small community-based organization might have particular expertise in serving LEP students in one specific language group; another might focus on students with a specific disability. Requiring all prospective providers to serve students with the full range of disabilities or students with the full range of second-language needs would undoubtedly result in disqualifying many potentially effective providers from the program. Therefore, we decline to require that all providers be able to serve students with disabilities and LEP students.
As we noted in the discussion of the comments on § 200.37, the Secretary agrees that State and LEA lists of approved providers should include information on providers who serve students with disabilities and providers who serve LEP students. We, therefore, have added language to § 200.37(b)(5)(ii)(B) and § 200.47(a)(3)(ii) to make this clear.
The Department notes that Title I, Part A funds expended to meet the 20 percent obligation, like other Title I, Part A funds, would be auditable expenses and that LEAs should account for them as they would other Federal funds. The Department is not, at this time, intending to collect data on the use of these funds.
(a) Partnering with community-based organizations or other groups to help inform eligible students and their families of the opportunities to transfer or to receive supplemental educational services;
(b) Ensuring that eligible students and their parents had a genuine opportunity to sign up to transfer or to obtain SES, including by—
(i) Providing timely, accurate notice as required in §§ 200.36 and 200.37;
(ii) Ensuring that sign-up forms for SES are distributed directly to all eligible students and their parents and are made widely available and accessible through broad means of dissemination, such as the Internet, other media, and communications through public agencies serving eligible students and their families; and
(iii) Allowing eligible students to sign up to receive SES throughout the school year; and
(c) Ensuring that eligible SES providers are given access to school facilities, using a fair, open, and objective process, on the same basis and terms as are available to other groups that seek access to school facilities.
Other commenters opposed the proposed regulations. Some commenters asserted that the changes in proposed § 200.48(d) were inconsistent with the statute and that the Secretary does not have the authority to require LEAs to carry over unexpended public school choice and SES funds.
Similarly, the requirements in § 200.48(d) do not apply if an LEA enrolls sufficient numbers of eligible students to spend all funds reserved for choice-related transportation and SES, but has funds left over at the end of the year because one or more providers did not fulfill their contractual obligations or because enrolled students did not begin or complete services. However, if an LEA experiences significant student attrition in its SES program early in the school year, leading to lower than anticipated expenditures, it would be expected to hold a second enrollment period and sign up sufficient students to use the full 20 percent obligation.
In the case of an LEA that is able to provide public school choice and SES to all eligible students without spending its full 20 percent obligation, the requirements in § 200.48(d) apply only to the funds that are reserved to serve eligible students. For example, if an LEA can serve all eligible students with an amount equal to 10 percent of its Title I, Part A allocation, it would be required to reserve only that amount for choice-related transportation and SES and would be able to use the other half of its 20 percent obligation immediately for other allowable activities. Note, however, that an LEA seeking to exempt a portion of its 20 percent obligation from the requirements in § 200.48(d) must base the amount that it reserves for choice-related transportation and SES on the assumption that
Under the final regulation, the LEAs that are likely to carry over unused choice-related transportation and SES funds are those that have not met the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)). However, even these LEAs would be unlikely to lose Title I funds due to the 15 percent Title I carryover limitation or other Federal accounting requirements, for several reasons. First, under section 1127(b) of the ESEA, an LEA may apply to the State for a one-year exemption (available once every three years) from the 15 percent Title I carryover limitation. This exemption is one reason that the Department believes that other measures proposed by commenters to ensure that an LEA does not lose unspent choice-related transportation and SES funds due to the 15 percent Title I carryover limitation, such as a waiver of the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)) or excluding funds from the 20 percent obligation from the 15 percent Title I carryover limitation, are unnecessary.
The second reason the 15 percent Title I carryover limitation should not lead to the loss of an LEA's Title I funds is that § 200.48(d) focuses on the amount that must be spent on choice-related transportation and SES, not the specific funds or source of funds that an LEA uses to satisfy that amount. In other words, what is actually “carried over” is a funding commitment, not actual funds. LEAs not meeting the criteria must add the amount of any unused portion of the 20 percent obligation to the amount that must be spent on choice-related transportation and SES in the subsequent year. Thus, an LEA that does not meet the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)), and that has, for example, $100,000 in unused fiscal year 2009 Title I, Part A funds that were reserved as part of the LEA's 20 percent obligation in the 2009–2010 school year, does not have to carry over those specific Title I funds to the next school year. The LEA could use that $100,000 in fiscal year 2009 Title I funds for other Title I activities in the 2009–2010 school year, so long as it adds the same $100,000 amount—from any Federal, State, or local source—to its 20 percent obligation for the 2010–2011 school year. The third reason that LEAs in this situation would be unlikely to allow carried-over Title I funds to lapse is that they are likely to use “first in-first out” accounting rules, as described earlier in this discussion.
For all of these reasons, the Department believes that the concerns expressed by commenters about the potential loss of Title I funds due to the interaction of the requirements in § 200.48(d) and the 15 percent Title I carryover limitation are unwarranted. Moreover, it is not the intention, or the expectation, of the Secretary that any LEA will lose access to any portion of its Title I, Part A allocation due to the requirements in § 200.48(d). Rather, these requirements are intended to promote, consistent with the authorizing statute, maximum participation by eligible students in Title I public school choice and SES.
For this reason, the Department does not believe that the provisions in § 200.48(d), which potentially require an LEA with unused funds from its 20 percent obligation to carry over those funds for expenditure on choice-related transportation and SES in the subsequent school year, unlawfully or otherwise inappropriately affect the amount of carryover funds available for equitable services for private school students. It is important to note that the requirement to spend an amount equal to at least 20 percent of an LEA's Title I, Part A allocation for choice-related transportation and SES applies even if an LEA does not use Title I, Part A funds to meet its 20 percent obligation. However, assuming an LEA does use Title I, Part A funds, those funds are not subject to the equitable services requirement, as noted previously, because they are specifically used to provide choice-related transportation, SES, and parent outreach to eligible students in schools in need of improvement, corrective action, and restructuring—requirements that do not apply to private schools or services that private school students receive under Title I, Part A, just as they do not apply to services for students in public schools that are not identified for improvement. The regulations in § 200.48(d) merely require an LEA that did not spend the requisite amount in a given year on choice-related transportation, SES, and parent outreach to spend the unexpended amount on those same activities in the following year (unless the LEA meets the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)). If an LEA reserved Title I, Part A funds for those activities and can demonstrate that spending an amount less than the 20 percent obligation is warranted, the Title I, Part A funds that the LEA then may use for other allowable activities would be subject to the equitable services requirements, as applicable. The revised criteria in new § 200.48(d)(2)(i), particularly in new paragraph (d)(2)(i)(B)(
As for the recommendation that proposed § 200.48(d) apply only where Federal or State monitoring has found problems with LEA implementation of public school choice and SES requirements, the Department believes that the appropriate response to findings from State performance reports, evaluations, and Federal monitoring reports documenting continuing low participation rates in the face of a potentially increasing number of eligible students is not to continue to rely solely on routine monitoring. Although the Secretary does not agree that the requirements in proposed § 200.48(d) would have created significant and unnecessary new administrative burden for States, she does agree that the goal of the proposed regulation—improved implementation of Title I public school choice and SES provisions—can be met through a more targeted approach to enforcement. For this reason, and to reduce administrative burden on States and LEAs, we have restructured and made several changes to proposed § 200.48(d). First, LEAs are not required to submit evidence of compliance with the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)) to their SEA, or to receive SEA approval before using unspent choice-related transportation and SES funds for other allowable activities. Instead, the final regulations only require an LEA seeking to use unspent choice-related transportation and SES funds for other allowable activities to (1) maintain records showing that it has met the criteria in new § 200.48(d)(2)(i), (2) notify the SEA that it has met those criteria, and (3) notify the SEA that it intends to spend the remainder of its 20 percent obligation on other allowable activities and indicate the amount of that remainder. An SEA will not be required to review and approve each LEA's use of unspent funds from its 20 percent obligation but generally will ensure LEA compliance through its regular monitoring process. However, in addition to its regular monitoring, an SEA must review any LEA that (1) the SEA determines has spent a significant portion of its 20 percent obligation for other activities, and (2) has been the subject of multiple complaints, supported by credible evidence, regarding the LEA's implementation of the public school choice and SES requirements. The SEA must complete the required review of such LEAs before the beginning of the next school year. We also note that an SEA may target for review any LEA that it believes is not implementing public school choice and SES in accordance with the law and regulations.
If an SEA finds during its monitoring and review that an LEA failed to meet any of the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)), the LEA must (1) add the amount of any unspent choice-related transportation and SES funds (i.e., the “remainder” specified in new § 200.48(d)(2)(iii)(B)) to its 20 percent obligation for the next school year or (2) meet the criteria in new § 200.48(d)(2)(i) and obtain permission from the SEA before spending any portion of this total amount on activities other than choice-related transportation, SES, or parent outreach and assistance. In addition, the SEA must confirm the LEA's compliance with the criteria in new
The final regulations also clarify that the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)) are the minimum criteria that LEAs must meet before spending any portion of their 20 percent obligation on other allowable activities. An SEA may establish additional criteria for the effective implementation of Title I public school choice and SES options. We note, however, that any other criteria used by an SEA to review LEA compliance with the requirements in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)) must be in addition to, and may not serve as a substitute for, the criteria in new § 200.48(d)(2)(i) (proposed § 200.48(d)(1)).
Proposed § 200.48(d)(2) has been redesignated as new § 200.48(d)(1)(ii) and a new paragraph (d)(4) has been added to provide that if an SEA determines, either through its regular monitoring or through the review required by new paragraph (d)(3)(ii), that an LEA has failed to meet any of the criteria in new paragraph (d)(2)(i), the LEA must (1) spend an amount equal to the remainder specified in its notice to the SEA under new § 200.48(d)(2)(iii)(B) in the subsequent school year, in addition to its 20 percent obligation for that year on choice-related transportation costs, SES, or parent outreach and assistance or (2) meet the criteria in new § 200.48(d)(2)(i) and obtain permission from the SEA before spending less than this total amount (the remainder plus the new 20 percent obligation) on choice-related transportation, SES, or parent outreach and assistance. The SEA must confirm that the LEA has complied with the criteria in new paragraph (d)(2)(i) for that subsequent school year before granting such permission.
One problem with using written materials alone to communicate with parents is that such materials can vary widely in content and clarity. The NATI report also found that, although some notification letters were easy to read and presented public school choice and SES options as a positive benefit for eligible students, others were confusing, discouraged parents from changing schools, or appeared to be biased in favor of certain SES providers.
For all of these reasons, the Secretary believes that it is important for LEAs to use multiple methods for informing eligible parents of their public school choice and SES options. The Secretary believes that partnering with CBOs is an effective, low-cost strategy for LEAs to help ensure that eligible parents learn about and take advantage of public school choice and SES options for their children.
To address these concerns, while continuing to pursue the goal of expanding SES enrollment opportunities for eligible students and their parents, the final regulations require LEAs to provide a minimum of two enrollment windows at separate points in the school year. In addition, we have added language requiring that these enrollment windows be of sufficient length to enable parents to make informed decisions about requesting SES and selecting a provider. We note that to help ensure that parents have a genuine opportunity to sign up for SES, enrollment windows should be at times and places that are convenient for the parents of eligible students, including working parents and single parents. One approach, for example, would be to link enrollment windows to the end of grading periods and the associated parent-teacher conferences that typically create a natural opportunity to encourage and promote SES enrollment. Multiple enrollment windows will also help ensure that students who enroll after the beginning of the school year have an opportunity to sign up for SES.
With respect to the claim that SES services are “unproven,” under § 200.47(b), an SEA may only grant approval to providers with a “demonstrated record of effectiveness,” and final regulations in § 200.47 would strengthen the process for approving and renewing and withdrawing approval of SES providers.
Our intent in the NPRM was to reference the definition of “highly qualified special education teacher” in 34 CFR 300.18 of the IDEA regulations so as to clarify, consistent with section 602(10)(F) of the IDEA, that the flexibility in meeting the highly qualified requirements afforded some special education teachers under the IDEA applies to determinations of whether they are highly qualified under the ESEA. The language in the preamble to the NPRM, however, might have implied that special education teachers who do not teach core academic subjects would be covered by the ESEA regulations. Such an implication would be inaccurate because the term “highly qualified” in the ESEA is only used with regard to teachers who are teaching core academic subjects. The preamble to the NPRM might also have implied that special education teachers would have to meet the highly qualified requirements in the IDEA in order to be highly qualified under the ESEA, even if they met the requirements in § 200.56. We did not intend to change the requirements for highly qualified teachers under the IDEA or the ESEA or imply that the requirements for all highly qualified special education teachers would be enforced under the ESEA. We merely wanted to clarify that, if a special education teacher is highly qualified under 34 CFR 300.18, that teacher is considered highly qualified under § 200.56, recognizing that the term “highly qualified” in the ESEA is used only with regard to teachers who are teaching core academic subjects. Therefore, we are revising § 200.56(d) to make clear that a special education teacher is a highly qualified teacher for purposes of the ESEA if the teacher is a “highly qualified special education teacher” under 34 CFR 300.18. Special education teachers who meet the requirements in § 200.56(a) and (b) or (c) are also highly qualified under the ESEA even if they do not meet the requirements under the IDEA.
We are also including another table (Table 2) that provides a detailed timeline for implementing the graduation rate requirements.
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments, or communities in a material way (also referred to as an “economically significant” rule); (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order. The Secretary has determined that this regulatory action is significant under section 3(f)(4) of the Executive order.
The Department believes many of the regulatory changes included in these final regulations will not impose significant costs on States, LEAs, or other entities that participate in programs funded under Part A of Title I. Other changes will impose costs, but the Department believes that the benefits resulting from the regulations will greatly exceed those costs. Although many commenters claimed that the proposed regulations would increase State or local burden (and one commenter stated specifically that the cost-benefit analysis included in the NPRM underestimated the costs of implementing the proposed regulations), commenters did not provide alternative estimates of the costs of implementing the various proposals. Therefore, this final cost-benefit analysis generally continues the Department's original estimates, making revisions only to reflect changes in the regulations or in other places where the Department determined that revisions were needed.
The major benefit of these regulations, taken in their totality, is a Title I, Part A program in which clearer accountability and implementation requirements (particularly in the areas of high school graduation rate, public school choice, and SES) will be coupled with greater flexibility in implementation (particularly in the use of measures of individual student academic growth in calculating AYP). These regulations will, thus, add to the contributions that NCLB has made to the creation of a system in which schools, LEAs, and States expect to educate all children to high standards and are held accountable for doing so. The regulations will support the attainment of increases in student achievement that build on the improvements that the Nation has seen in the last several years. The benefits to the United States of having a more educated citizenry have been plentiful and will continue to be so as the reforms implemented as a result of NCLB (and as supported through these regulations) continue to take hold.
The Department's analysis of the costs and benefits of implementing specific provisions of the regulations follows. The costs to implement specific provisions of the regulations are included in the tables at the end of the
The regulations in § 200.7 clarify that State definitions of AYP must include a minimum group size that is based on sound statistical methodology, that yields statistically reliable information for each purpose for which disaggregated data are used, and that ensures that, to the maximum extent practicable, all student groups are included, particularly at the school level, in accountability determinations. The Department has previously reviewed each State's minimum group size and believes that some States already meet the requirements of § 200.7. Some States, however, may need to revise their minimum group size and other components of the State's AYP definition based on the final
All States are required to revise their Accountability Workbook and explain how their minimum group size meets the requirements in § 200.7 and to provide certain other information on their minimum group size and AYP definition (information on how other components of the State's AYP definition, in addition to its minimum group size, interact to affect statistical reliability and ensure the maximum inclusion of all students and student subgroups in AYP determinations as well as information on the exclusion of students and subgroups from those determinations). States are required to submit to the Department, for technical assistance and peer review, a revised Accountability Workbook that reflects these new requirements in time for AYP determinations based on 2009–2010 assessment results.
Under the regulations in § 200.19(b)(6), States will also need to revise their Accountability Workbook in order to include: (a) The State's current graduation rate definition, (b) the State's progress toward meeting the deadline for calculating and reporting the four-year adjusted cohort graduation rate, (c) the State's graduation rate goal and targets, (d) an explanation of how the State's graduation rate goal represents the rate the State expects all high schools in the State to meet and of how the State's targets demonstrate continuous and substantial improvement toward meeting or exceeding the goal, and (e) the graduation rate for the most recent school year of the high school at the 10th percentile, the 50th percentile, and the 90th percentile in the State (ranked in terms of graduation rate). If a State decides to use an extended-year adjusted cohort graduation rate as part of its AYP definition, the State must also describe, in its Accountability Workbook, how it will use that rate with its four-year adjusted cohort graduation rate to determine whether its schools and LEAs have made AYP. These requirements are somewhat different from what the Department proposed in the NPRM.
We have revised our earlier estimates (included in the NPRM) of the cost to States of submitting a revised Accountability Workbook in order to include the time necessary to prepare and submit the information related to graduation rates. The Department estimates that each State would, on average, require 276 hours of staff time to complete this effort, including 80 hours for development and analysis of a proposed minimum group size policy (within an overall definition of AYP), 132 hours for the development of new graduation rate definitions and policies, and an additional 64 hours for actual preparation of the Accountability Workbook. We further estimate that SEAs' cost for that activity will be $30 an hour. For the 50 States, the District of Columbia, and Puerto Rico, the estimated cost of revising and submitting their Accountability Workbook would thus be $430,560. These estimates incorporate an assumption that some States will need to do additional work on their Accountability Workbook as a result of feedback from the peer review.
In response to the NPRM, one commenter stated that our cost estimates severely underestimated the time and resources States would expend to revise their Accountability Workbook. However, the commenter did not provide alternative estimates for the Department to consider. Moreover, this cost-benefit analysis includes a “sensitivity analysis” (discussed later in this section) that subjects the cost calculations to alternative (and higher) assumptions about the amount of time that will be required for compliance.
The Department believes that the benefits of the change in minimum group size policy, in terms of greater accountability that would result from a State's use of a minimum group size that meets the regulatory criteria, would greatly outweigh the minimal costs of compliance.
In the NPRM, the Department projected that States and LEAs would be able to implement at minimal cost the requirement to include NAEP data on State and LEA report cards. The Department made this projection because State NAEP results are available on the NCES Web site and through other sources, and obtaining those data should not pose a significant burden. Neither should including the data on report cards, as the NAEP results would be a minor addition to the data already so included.
Several individuals who commented on the NPRM stated that it would be burdensome for SEAs and LEAs to ensure the accurate and appropriate use of NAEP results and some said, more specifically, that the incorporation of NAEP results on State report cards would require significant staff time and resources because States must seek input from stakeholders, obtain State Board of Education approval, and pay the costs for reproduction. Other commenters stressed that LEAs would need to clarify, on their report cards, that only limited comparisons can be made between NAEP and State assessments because of the differences between the two assessments.
In consideration of these comments, the Department reiterates that NAEP data are readily available and that it should not be a significant burden for States and LEAs to obtain and include those data on their report cards. However, the Department also acknowledges that there will be some cost, particularly in the first year, of making the transition to including NAEP data on State and local report cards. The Department's final estimate is that, in the first year, each SEA will require 24 hours to incorporate NAEP data on State report cards and, thereafter, each SEA will require the 5 hours annually that the Department estimated in the Paperwork Reduction Act analysis included in the NPRM. At $30 per hour, the estimated cost of implementation for 52 States is, thus, $37,440 in the first year and $7,800 in each succeeding year.
Similarly, at the local level, the Department also estimates 24 hours of burden in the first year and 5 hours thereafter. For approximately 14,000 LEAs, at $25 per hour, the total cost will be $8,400,000 in year one and $1,750,000 annually thereafter.
These estimates take into consideration the changes made in the final regulations, which provide greater specificity on the NAEP data that must be reported and no longer require LEAs to publish disaggregated NAEP results. The Department does not believe that those changes will add measurably to the cost of compliance.
We note that the NAEP reading and mathematics assessments are administered only once every two years. In the second year of a cycle, the costs to SEAs and LEAs of including NAEP data on their report cards should be particularly low. Further, the Department assumes that, in many States, the SEA will prepare summaries of the NAEP data (largely from the “snapshots” provided by NCES and accessible on the NCES Web site) and provide them to LEAs, which in turn will be able to include those summaries on their report cards with little investment of time or effort. The Department, thus, does not believe that the cost of including NAEP data on the report cards will be any greater than what is estimated above.
The Department believes that these minimal costs of implementing the requirements to include NAEP data on report cards will be greatly outweighed by the benefits of providing the public with important additional information
The final regulations restructure the regulations in § 200.19 on “Other Academic Indicators” and, in particular, require States to adopt a “four-year adjusted cohort graduation rate” and, at a State's option, an “extended-year adjusted cohort graduation rate,” for the purpose of reporting no later than school year 2010–2011 and for the purpose of making AYP determinations no later than school year 2011–2012. Prior to those deadlines, States will use either the four-year adjusted cohort graduation rate or a transitional graduation rate, which for most States will be the rate they currently use, for those two purposes. (Unlike the NPRM, the final regulations do not require States to implement an “Averaged Freshman Graduation Rate” during the interim period.) The regulations also require the use of disaggregated graduation rate data for AYP determinations beginning with the determinations based on school year 2011–2012 assessment results (with the exception that “safe-harbor” determinations, which are already required to include disaggregated data, would continue to include them). In addition, the final regulations require a State to include in its AYP definition (a) a single graduation rate goal that the State expects all high schools in the State to meet, and (b) annual graduation rate targets that reflect continuous and substantial improvement from the prior year toward meeting or exceeding the goal. To make AYP beginning with determinations based on 2009–2010 assessment results, any school or LEA that serves grade 12, and the State, must meet or exceed the graduation rate goal or annual target.
In order to meet the deadlines for implementation of the four-year adjusted cohort graduation rate, States will need to have in place a data system that can track students who emigrate to another country, transfer to another school, or die. States also will need to collect four years of student data through those systems in order to implement the new rate by the deadline established in the final regulations.
In 2005, all 50 States agreed to the NGA's
At the local level, the major cost of implementing the new regulations on graduation rate will be in determining whether students who have left the schools of an LEA have transferred to another LEA or school or have dropped out. We estimate that each LEA will require 50 hours annually to meet this responsibility. For approximately 14,000 LEAs nationally, at $25 per hour, the cost of implementation will be approximately $17.5 million.
We believe the benefits of the changes regarding graduation rate definitions and the use of disaggregated graduation rate data in AYP calculations will be significant. A uniform and accurate method of calculating graduation rate is needed to raise expectations and to hold schools, LEAs, and States accountable for increasing the number of students who graduate on time with a regular high school diploma, as well as to provide parents and the public with more accurate information. By requiring all States to use a more rigorous and accurate graduation rate calculation, the Department can ensure greater accountability and transparency on this important indicator. In addition, we need to have a uniform and accurate method of calculating high school graduation rate to improve our understanding of the scope and characteristics of those students dropping out of school or taking longer to graduate. Finally, the use of disaggregated graduation rate data in AYP calculations will help ensure that schools and LEAs do not allow overall success in graduating students in four years (or less) to mask low graduation rates for individual student groups.
The final regulations allow States to use measures of individual student academic growth in school and LEA AYP determinations and, thus, provide States with greater flexibility without burdening them with significant additional costs. To receive permission to incorporate individual student academic growth into its AYP definition, a State will have to have implemented a longitudinal data system that tracks student progress from grade to grade. However, as discussed earlier under the heading
In order to implement an AYP definition that includes measures of student academic growth, an SEA will need to submit a request to the Department that describes that definition and meets certain other requirements. We estimate that a State would need 240 hours to prepare such a request. If all 52 States prepare such requests, the total cost would be $374,720 (again assuming $30 per hour).
The final regulations make a number of changes to the current regulations on public school choice and supplemental educational services.
First, in § 200.37, the regulations require LEAs to notify parents of eligible students of the option to transfer their child to another school, sufficiently in advance of, but no later than 14 calendar days before, the start of the school year in order to give those parents adequate time to exercise their public school choice option. As stated in the NPRM, the Department believes that this regulation would not increase LEA costs because it would affect merely the timing of the parental notification. Two commenters on the NPRM disagreed, stating that this change in the regulations would result in increased local administrative costs. However, the commenters did not offer any facts or estimates to support that comment, so we decline to amend our analysis.
Under § 200.37, the regulations also require that an LEA's notice to parents of students eligible for SES: (a) Explain the benefits of SES, (b) be clear and concise, and (c) be clearly distinguishable from the other school improvement information sent to parents under § 200.37. The final regulation, unlike the NPRM, also requires that this notice include an indication of those providers that are able to serve students with disabilities or LEP students. The Department does not believe this change will add significantly to LEAs' compliance burden because information on providers that are able to serve students with disabilities and LEP students will be available from the SEAs; LEAs will not need to collect that information themselves.
We note that LEAs may assign costs related to meeting this requirement to the amount equal to 0.2 percent of their Title I, Part A allocation that the regulations permit LEAs to use for outreach and assistance to parents on public school choice and SES.
Data from the ESEA Consolidated State Performance Report indicate that approximately 2,000 LEAs nationally have at least one Title I school in year two of school improvement (or in a later stage of the Title I accountability timeline). These are the schools with students eligible for SES that would technically be covered by this new requirement. However, some of these LEAs are not able to offer SES and, thus, are not affected by the proposed notice requirement. For example, rural and other small or isolated LEAs often do not have any approved SES providers serving their area. For this reason, our analysis assumes that 80 percent of the estimated 2,000 LEAs with at least one Title I school in year two of improvement or later, or 1,600 LEAs, will be subject to the notice requirement annually. We estimate that these 1,600 LEAs will each require an average of 12 hours of staff time to prepare the notice to parents and that the cost for this time will average $25 per hour. Under this assumption, the cost for the preparation of this notice will be $480,000 annually.
Further, in the 2006–2007 school year, in the States for which the Department has data, approximately 3.7 million students were eligible for SES.
These estimates are the same as those the Department included in the NPRM (with the exception of an adjustment to reflect a subsequent change in the first-class postage rate). Although one commenter stated that implementation of these requirements in the regulations would be burdensome, no commenters challenged these cost estimates.
The regulations in § 200.39 require LEAs to post on their Web sites information on their implementation of the public school choice and SES requirements, including information on the number of students who were eligible for and who participated in the public school choice and SES options, information on approved SES providers operating in the LEA and on the locations where services are provided, and a list of schools available to students who wish to take advantage of the public school choice option. If an LEA does not have its own Web site, the SEA is required to include on its Web site the information otherwise required of LEAs.
Based on data from the ESEA Consolidated State Performance Report, approximately 3,000 LEAs have a Title I school in year one of improvement or later and, thus, are technically required to offer either public school choice, or both public school choice and SES, to their eligible students. However, as with the SES notice requirement, some of those LEAs would not be affected because they are unable to offer public school choice and SES due to a lack of choice options (for instance, rural and other small LEAs frequently have only one school at a particular grade span) or the absence of an approved SES provider serving their area. We estimate that 80 percent of the 3,000 LEAs with a Title I school in year one of improvement or later, or 2,400 LEAs, would need to post the new information on their Web site. We further estimate that these LEAs would require an average of 25 hours of staff time to prepare the data for the Web site, at a cost of $25 per hour, for an estimated national cost of $1,500,000 to meet the new requirement to post public school choice and SES information on LEA Web sites. Therefore, the total estimated cost for implementation of the new SES and Web site notice requirements is $2,736,000. These estimates are unchanged from those the Department included in the NPRM (again, with the exception of a minor adjustment because of a change in the postage rate). Although some commenters opposed the proposed requirements as burdensome, none challenged the
We have also estimated the cost to SEAs of posting the public school choice and SES information for LEAs that do not have their own Web sites. The Department projects that 47 States will need to post this information and that this effort will require five hours annually. At $30 per hour, the estimated total national cost is $7,050.
The benefits of these provisions are that parents and others will have more and better information about public school choice and SES and, thus, parents might be more likely to take advantage of those options (with attendant benefits for their children) and that LEA implementation of the public school choice and SES requirements will be more transparent. We also note that LEAs may assign costs related to meeting this requirement to the amount equal to 0.2 percent of their Title I, Part A allocations under § 200.48(a)(2)(iii)(C).
The final regulations in § 200.47 require SEAs to post information on their Web sites on the amount that each LEA must spend for public school choice and SES (that is, an amount equal to 20 percent of the LEA's Title I allocation) and, for each LEA, the per-child amount for SES. SEA Web sites must also indicate which SES providers are able to serve students with disabilities or LEP students. The Department added these provisions to the final regulations in response to comments on the NPRM. The Department believes that the information called for will be readily available to most SEAs and, thus, should be inexpensive to post. (A few SEAs may have to revise their application instructions in order to gather some of this information, but the cost of making such revisions should be minimal.) The Department estimates that it will require four hours annually for an SEA to post this information. For 52 SEAs at $30 an hour, the total annual cost will be an estimated $6,240.
The regulations in § 200.47 also clarify the SEA's responsibilities for SES, by stating that those responsibilities include developing, implementing, and publicly reporting on the SEA's standards and techniques for monitoring LEAs' implementation of SES. States should already have such standards and techniques in place because they are required under 34 CFR 80.40 to monitor LEA activities. The burden of publicly reporting on them, such as by posting information about them on the SEA's Web site, should be minimal. Specifically, we estimate that the total cost of implementation will be $62,400, based on an assumption that each of the 52 SEAs will require 40 hours to fulfill these responsibilities, at a cost of $30 an hour. The benefit of these regulations will be greater transparency of how SEAs monitor LEAs' implementation of SES.
The regulations in § 200.47 also clarify that, in order to be approved as an SES provider, an entity must provide the State with evidence that the instruction it would provide and the content it would use are aligned with the State's academic content and student academic achievement standards and are of high quality, research-based, and specifically designed to increase the academic achievement of eligible children. In addition, a State must consider, at a minimum, (1) whether the entity has been removed from any State's approved provider list; (2) parent recommendations or results from parent surveys, if any, regarding the success of the entity's instructional program in increasing student achievement; and (3) evaluation results, if any, demonstrating that the instructional program has improved student achievement. The Department believes that these requirements will result in improvements in States' SES provider approval procedures leading to high-quality SES and improved student achievement, and that the cost of compliance will be very minimal.
The regulations in § 200.47 also further specify the evidence that States must consider when monitoring the quality and effectiveness of the services offered by an approved provider in order to inform decisions on renewal or withdrawal of approval of the provider. The statute and current regulations already require States to approve SES providers with a demonstrated record of effectiveness, and to develop and apply objective criteria for monitoring and withdrawing approval of providers. The regulations may add minimal costs to States if they need to revise their applications or monitoring protocol in order to comply with the requirements, or if a revised application or protocol results in more labor-intensive application review or monitoring. The regulations will only add costs to SES providers if they are not already providing this information to States in their applications for approval and renewal. The Department believes that the minimal costs to States and SES providers will be outweighed by the benefits of having a clear outline of the evidence that States must consider both before providers begin serving students in the State and as their programs are monitored and being considered for renewal or termination.
A number of commenters expressed concern about the costs of implementing the changes proposed for § 200.47, but did not offer specific estimates of the cost of implementation. For example, some commenters stated that the cost of SEA monitoring of SES providers would diminish direct services to students. The Department responded, in the
The regulations on funding for public school choice and SES in § 200.48 allow LEAs to count costs for parent outreach and assistance toward the requirement to spend the equivalent of 20 percent of the LEA's Title I, Part A allocation (the “20 percent obligation”) on choice-related transportation and SES. This provision permits an LEA to allocate up to 0.2 percent of its Title I, Part A allocation (1.0 percent of the 20 percent obligation) in that manner. Allowing LEAs to count toward meeting the 20 percent obligation a limited amount of funds for parent outreach and assistance will help ensure that LEAs provide parents the information they need to make the best decisions for their children. The new provision will not impose costs on LEAs, as they would, at their discretion, support the parental outreach and assistance activities by using funds from other activities.
The amendments to § 200.48 also require an LEA that uses unspent funds
(1) Partner, to the extent practicable, with outside groups, such as faith-based organizations, other community-based organizations, and business groups, in order to inform eligible students and their families about their opportunities for public school choice and SES.
(2) Ensure that eligible students and their families have a genuine opportunity to transfer to schools or to receive SES. The language clarifies that providing such an opportunity includes (a) providing timely and accurate notice to those students and their families, as required under §§ 200.36 and 200.37; (b) ensuring that sign-up forms for SES are distributed directly to all eligible students and are made widely available and accessible; and (c) providing a minimum of two SES enrollment “windows” at separate points in the school year that are of sufficient length to enable parents of eligible students to make informed decisions about requesting SES and selecting a provider.
(3) Ensure that approved SES providers are given access to school facilities through a fair, open, and objective process.
In response to comments on the NPRM, the Department revised the proposed language to require an LEA that is using funds from its 20 percent obligation for other purposes: (1) To maintain records that it has met the criteria listed above, and (2) to notify the SEA that it has met those criteria and of the amount remaining from its 20 percent obligation that it intends to spend on other allowable activities. These requirements replace language in the NPRM that would have required LEAs to obtain permission from the SEA before using unspent funds for other purposes. The final regulations also: (1) Revise the proposed language on partnering to provide examples of outside groups with which an LEA may partner and to clarify that this activity must take place only to the extent practicable; and (2) replace a requirement that LEAs permit eligible students to sign up for SES throughout the school year with a requirement for two enrollment “windows” at separate points in the school year. All of these changes should result in reduced compliance costs.
The Department believes that most of the costs that LEAs will incur in meeting these requirements will be minimal. The most tangible costs will be for developing a clearly distinguishable notification (on eligibility and the benefits of SES) to parents of eligible students (which has been accounted for in the cost estimate for § 200.37) and in maintaining records and informing the SEA that an LEA has met the various outreach and access criteria in § 200.48(d) if it wishes to use unspent funds from its 20 percent obligation for other allowable activities. We estimate these additional LEA documentation costs related to § 200.48(d) as follows.
As noted earlier, we project that 2,400 LEAs annually will be required to offer public school choice, or both public school choice and SES, to their eligible students. Further, based on data for 378 LEAs reported to the Department's ED
The remaining 1,800 LEAs, under our assumptions, will decide to use unspent funds from their 20 percent obligation for other allowable activities and, thus, will need to maintain records demonstrating that they have met the criteria in § 200.48(d)(2)(i) and inform the SEA that they have met those criteria and of the amount they intend to spend on other allowable activities. We estimate that the annual cost of this effort will be $540,000, based on an assumption that each LEA will require 12 hours to meet these requirements and that LEAs' costs for this effort will be $25 per hour.
The final regulations also revise the language in the NPRM on SEA responsibilities related to an LEA's use of any unspent portion of its 20 percent obligation. In place of the proposed requirement for SEAs to approve LEA requests to spend less than the 20 percent obligation, the final regulations require that SEAs ensure, through their regular monitoring process, LEAs' compliance with the criteria in new § 200.48(d)(2)(i). The regulations also require SEAs to review certain LEAs (those that have spent a significant portion of their 20 percent obligation on other allowable activities and have been the subject of multiple complaints, supported by credible evidence, related to public school choice or SES) and to complete each such review by the beginning of the next school year. The Department estimates that most of the costs of meeting these requirements will be minimal, as SEAs are already monitoring LEAs' implementation of the public school choice and SES requirements and should be able, at minimal cost, to incorporate the new requirements into their monitoring procedures. However, the requirement to complete a review of certain LEAs before the beginning of the next school year will likely result in SEAs having to undertake additional monitoring and review activities. The Department estimates that, of the projected 1,800 LEAs that will elect to spend less than their 20 percent obligation on choice-related transportation and SES, five percent (90) will be covered by § 200.48(d)(3)(ii)(A) and, thus, will be required to be reviewed by the SEA prior to the beginning of the next school year. The Department further estimates that 80 percent of these reviews (72) will be reviews that the State would not have carried out in the absence of this new requirement. Finally, the Department estimates that the cost of carrying out each review (including staff time, travel, and other expenses) will average $1,220 (based on 24 hours of staff time per review, at $30 an hour, plus $500 per review for travel and additional expenses). Thus, the estimated total cost of implementation will be $87,840 annually.
Finally, the regulations require that, if an SEA determines that an LEA has failed to meet the three criteria related to implementation of public school choice and SES, the LEA must spend, in the next year, the “unexpended” amount needed to meet the 20 percent obligation, in addition to the 20 percent required in that subsequent year. Such an LEA must also request SEA permission before spending less than the unexpended amount and the 20 percent obligation in the subsequent
Overall, the total estimated cost of implementing the regulations on public school choice and SES is $3,519,060.
Although our cost estimates for the public school choice and SES regulations are necessarily speculative (because of the limited availability of relevant data), the estimated costs are low even if some of the assumptions are changed significantly. For example, if the number of hours required at each stage of implementing the new public school choice and SES regulations were doubled, the total annual cost would increase only to $6,245,460. These costs, even when combined with the estimated $27,188,800 attributable to implementation (in the first year) of the regulations on minimum group size, high school graduation rates, submission of revised Accountability Workbooks, the inclusion of NAEP data on report cards, and implementation of AYP definitions that include measures of student growth are an extremely small amount within the context of the $13.9 billion Title I program.
The Department believes that the regulations on public school choice and SES will result in significant benefits, in terms of providing more students with access to public school choice and SES under Title I and students and their families receiving better information about their options. A recent study by the RAND Corporation, supported by the Department, found that, in five out of the seven large urban LEAs in which there were sufficient numbers of students to analyze the effects, the students participating in SES showed statistically significant positive effects in both reading and mathematics achievement.
The Department believes that the additional provisions in the final regulations will not result in significant costs for LEAs, SEAs, or other entities. These provisions include, in § 200.2, clarification of the requirement that State assessments involve multiple measures of student achievement and, in § 200.43, clarification of the actions LEAs must take when schools are in “restructuring” status. Similarly, § 200.22 authorizes the creation of a National Technical Advisory Council; all costs of operating the National TAC will be paid for with Department salaries and expenses funds.
The final regulations contain information collection provisions that are subject to review by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). A description of the specific information collection requirements is provided in the following tables along with an estimate of the annual recordkeeping burden for these requirements. (Two of the requirements do not add additional burden to what has already been approved.) Included in the estimate is the time for collecting and tracking data, maintaining records, calculations, and reporting. We display the valid OMB control numbers assigned to the collections of information in these final regulations at the end of the affected sections of the regulations.
The final regulations include information collection requirements associated with the following provisions that will add additional burden to already approved collections (1810–0576 and 1810–0581): § 200.7(a)(2)(ii); § 200.11(c); § 200.19(b)(1); § 200.19(b)(1)(ii)(B)(1); § 200.19(b)(6); § 200.19(b)(7); § 200.20(h); § 200.37(b)(5)(ii)(C); § 200.39(c)(1); § 200.39(c)(2); § 200.47(a)(1)(ii)(B); § 200.47(a)(3)(ii); § 200.47(a)(4)(iii); § 200.48(d)(3); and 200.48(d)(4). These information collection requirements were listed in the NPRM or represent new or modified requirements in response to public comment.
Burden hours and cost estimates for the final regulations pertaining to “State Educational Agency, Local Educational Agency, and School Data Collection and Reporting under ESEA, Title I, Part A (OMB Number 1810–0581)” are presented in the following tables. The first table presents the estimated burden for SEAs and the second table presents the estimated burden for LEAs.
Information collection activities are also associated with other final revisions to § 200.47(a)(4) at the SEA level. These particular revisions, however, do not pose an additional burden to SEAs because they simply specify how SEAs are to carry out this part of the regulation and related regulations but should not require additional time beyond the hours already estimated for § 200.47(a) in the currently approved 1810–0581 collection.
Information collection activities are also associated with §§ 200.37(b)(4)(iv) and 200.37(b)(5)(ii)(B). The information collection activities associated with this change do not pose an additional burden to LEAs, however. Sufficient hours for this activity are already accounted for in the currently approved 1810–0581 collection.
SEA burden hours and cost estimates for the final regulations pertaining to “Consolidated State Application (OMB Number 1810–0576)” are presented in the following table.
The Secretary certifies that these final regulations will not have a significant economic impact on a substantial number of small entities. The small entities that the final regulations will affect are small LEAs receiving funds under Title I. These final regulations will not have a significant economic impact because the regulations impose minimal requirements beyond those that would otherwise be required under the ESEA, with most of those requirements falling on SEAs. Further, the small LEAs should be able to meet the costs of compliance with these regulations using Federal funds provided through Title I.
This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.
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20 U.S.C. 6301 through 6578, unless otherwise noted.
(b) * * *
(7) Involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding of challenging content, as defined by the State. These measures may include—
(i) Single or multiple question formats that range in cognitive complexity within a single assessment; and
(ii) Multiple assessments within a subject area.
The revision and additions read as follows:
(a) * * *
(2)(i) Based on sound statistical methodology, each State must determine the minimum number of students sufficient to—
(A) Yield statistically reliable information for each purpose for which disaggregated data are used; and
(B) Ensure that, to the maximum extent practicable, all student subgroups in § 200.13(b)(7)(ii) (economically disadvantaged students; students from major racial and ethnic groups; students with disabilities as defined in section 9101(5) of the Act; and students with limited English proficiency as defined in section 9101(25) of the Act) are included, particularly at the school level, for purposes of making accountability determinations.
(ii) Each State must revise its Consolidated State Application Accountability Workbook under section 1111 of the Act to include—
(A) An explanation of how the State's minimum group size meets the requirements of paragraph (a)(2)(i) of this section;
(B) An explanation of how other components of the State's definition of adequate yearly progress (AYP), in addition to the State's minimum group size, interact to affect the statistical reliability of the data and to ensure the maximum inclusion of all students and student subgroups in § 200.13(b)(7)(ii); and
(C) Information regarding the number and percentage of students and student subgroups in § 200.13(b)(7)(ii) excluded from school-level accountability determinations.
(iii) Each State must submit a revised Consolidated State Application Accountability Workbook in accordance with paragraph (a)(2)(ii) of this section to the Department for technical assistance and peer review under the process established by the Secretary under section 1111(e)(2) of the Act in time for any changes to be in effect for AYP determinations based on school year 2009–2010 assessment results.
The additions read as follows:
(c)
(1) The percentage of students at each achievement level reported on the NAEP in the aggregate and, for State report cards, disaggregated for each subgroup described in § 200.13(b)(7)(ii); and
(2) The participation rates for students with disabilities and for limited English proficient students.
The revision and additions read as follows:
(a)
(2)
(3)
(4)
(i) Must disaggregate its other academic indicators for elementary and middle schools by each subgroup described in § 200.13(b)(7)(ii) for purposes of determining AYP under § 200.20(b)(2) (“safe harbor”) and as required under section 1111(b)(2)(C)(vii) of the Act (additional academic indicators under paragraph (c) of this section); but (ii) Need not disaggregate those indicators for determining AYP under § 200.20(a)(1)(ii) (meeting the State's annual measurable objectives).
(b)
(i)(A) A State must calculate a “four-year adjusted cohort graduation rate,” defined as the number of students who graduate in four years with a regular high school diploma divided by the number of students who form the adjusted cohort for that graduating class.
(B) For those high schools that start after grade nine, the cohort must be calculated based on the earliest high school grade.
(ii) The term “adjusted cohort” means the students who enter grade 9 (or the earliest high school grade) and any students who transfer into the cohort in grades 9 through 12 minus any students removed from the cohort.
(A) The term “students who transfer into the cohort” means the students who enroll after the beginning of the entering cohort's first year in high school, up to and including in grade 12.
(B) To remove a student from the cohort, a school or LEA must confirm in writing that the student transferred out, emigrated to another country, or is deceased.
(
(
(iii) The term “students who graduate in four years” means students who earn a regular high school diploma at the conclusion of their fourth year, before the conclusion of their fourth year, or during a summer session immediately following their fourth year.
(iv) The term “regular high school diploma” means the standard high school diploma that is awarded to students in the State and that is fully aligned with the State's academic content standards or a higher diploma and does not include a GED credential,
(v) In addition to calculating a four-year adjusted cohort graduation rate, a State may propose to the Secretary for approval an “extended-year adjusted cohort graduation rate.”
(A) An extended-year adjusted cohort graduation rate is defined as the number of students who graduate in four years or more with a regular high school diploma divided by the number of students who form the adjusted cohort for the four-year adjusted cohort graduation rate, provided that the adjustments account for any students who transfer into the cohort by the end of the year of graduation being considered minus the number of students who transfer out, emigrate to another country, or are deceased by the end of that year.
(B) A State may calculate one or more extended-year adjusted cohort graduation rates.
(2)
(A) A graduation rate that measures the percentage of students from the beginning of high school who graduate with a regular high school diploma in the standard number of years; or
(B) Another definition, developed by the State and approved by the Secretary, that more accurately measures the rate of student graduation from high school with a regular high school diploma.
(ii) For a transitional graduation rate calculated under paragraph (b)(2)(i) of this section—
(A) “Regular high school diploma” has the same meaning as in paragraph (b)(1)(iv) of this section;
(B) “Standard number of years” means four years unless a high school begins after ninth grade, in which case the standard number of years is the number of grades in the school; and
(C) A dropout may not be counted as a transfer.
(3)
(A) A single graduation rate goal that represents the rate the State expects all high schools in the State to meet; and
(B) Annual graduation rate targets that reflect continuous and substantial improvement from the prior year toward meeting or exceeding the graduation rate goal.
(ii) Beginning with AYP determinations under § 200.20 based on school year 2009–2010 assessment results, in order to make AYP, any high school or LEA that serves grade 12 and the State must meet or exceed—
(A) The graduation rate goal set by the State under paragraph (b)(3)(i)(A) of this section; or
(B) The State's targets for continuous and substantial improvement from the prior year, as set by the State under paragraph (b)(3)(i)(B) of this section.
(4)
(ii)(A) Beginning with report cards providing results of assessments administered in the 2010–2011 school year, a State and its LEAs must report the four-year adjusted cohort graduation rate calculated in accordance with paragraph (b)(1)(i) through (iv) of this section.
(B) If a State adopts an extended-year adjusted cohort graduation rate calculated in accordance with paragraph (b)(1)(v) of this section, the State and its LEAs must report, beginning with the first year for which the State calculates such a rate, the extended-year adjusted cohort graduation rate separately from the four-year adjusted cohort graduation rate.
(C) Prior to the deadline in paragraph (b)(4)(ii)(A) of this section, a State and its LEAs must report a graduation rate calculated in accordance with paragraph (b)(1) or (b)(2) of this section in the aggregate and disaggregated by the subgroups in § 200.13(b)(7)(ii).
(5)
(ii) Prior to the AYP determinations described in paragraph (b)(5)(i) of this section, a State must calculate graduation rate in accordance with either paragraph (b)(1) or (b)(2) of this section—
(A) In the aggregate at the school, LEA, and State levels for determining AYP under § 200.20(a)(1)(ii) (meeting the State's annual measurable objectives), except as provided in paragraph (b)(7)(iii) of this section; but
(B) In the aggregate and disaggregated by each subgroup described in § 200.13(b)(7)(ii) for purposes of determining AYP under § 200.20(b)(2) (“safe harbor”) and as required under section 1111(b)(2)(C)(vii) of the Act (additional academic indicators under paragraph (c) of this section).
(6)
(A) The State's graduation rate definition that the State will use to determine AYP based on school year 2009–2010 assessment results.
(B) The State's progress toward meeting the deadline in paragraph (b)(4)(ii)(A) of this section for calculating and reporting the four-year adjusted cohort graduation rate defined in paragraph (b)(1)(i) through (iv) of this section.
(C) The State's graduation rate goal and targets.
(D) An explanation of how the State's graduation rate goal represents the rate the State expects all high schools in the State to meet and how the State's targets demonstrate continuous and substantial improvement from the prior year toward meeting or exceeding the goal.
(E) The graduation rate for the most recent school year of the high school at the 10th percentile, the 50th percentile, and the 90th percentile in the State (ranked in terms of graduation rate).
(F) If a State uses an extended-year adjusted cohort graduation rate, a description of how it will use that rate with its four-year adjusted cohort graduation rate to determine whether its schools and LEAs have made AYP.
(ii) Each State must submit, consistent with the timeline in § 200.7(a)(2)(iii), its revised Consolidated State Application Accountability Workbook in accordance with paragraph (b)(6)(i) of this section to the Department for technical assistance and peer review under the process established by the Secretary under section 1111(e)(2) of the Act.
(7)
(ii) To receive an extension, a State must submit to the Secretary, by March 2, 2009—
(A) Evidence satisfactory to the Secretary demonstrating that the State cannot meet the deadline in paragraph (b)(4)(ii)(A) of this section; and
(B) A detailed plan and timeline addressing the steps the State will take to implement, as expeditiously as possible, a graduation rate consistent with paragraph (b)(1)(i) through (iv) of this section.
(iii) A State that receives an extension under this paragraph must, beginning with AYP determinations under § 200.20 based on school year 2011–
The additions and revision read as follows:
(h)
(2) A State's policy for incorporating student academic growth in the State's definition of AYP must—
(i) Set annual growth targets that—
(A) Will lead to all students, by school year 2013–2014, meeting or exceeding the State's proficient level of academic achievement on the State assessments under § 200.2;
(B) Are based on meeting the State's proficient level of academic achievement on the State assessments under § 200.2 and are not based on individual student background characteristics; and
(C) Measure student achievement separately in mathematics and reading/language arts;
(ii) Ensure that all students enrolled in the grades tested under § 200.2 are included in the State's assessment and accountability systems;
(iii) Hold all schools and LEAs accountable for the performance of all students and the student subgroups described in § 200.13(b)(7)(ii);
(iv) Be based on State assessments that—
(A) Produce comparable results from grade to grade and from year to year in mathematics and reading/language arts;
(B) Have been in use by the State for more than one year; and
(C) Have received full approval from the Secretary before the State determines AYP based on student academic growth;
(v) Track student progress through the State data system;
(vi) Include, as separate factors in determining whether schools are making AYP for a particular year—
(A) The rate of student participation in assessments under § 200.2; and
(B) Other academic indicators as described in § 200.19; and
(vii) Describe how the State's annual growth targets fit into the State's accountability system in a manner that ensures that the system is coherent and that incorporating student academic growth into the State's definition of AYP does not dilute accountability.
(3) A State's proposal to incorporate student academic growth in the State's definition of AYP will be peer reviewed under the process established by the Secretary under section 1111(e)(2) of the Act.
(a) To provide advice to the Department on technical issues related to the design and implementation of standards, assessments, and accountability systems, the Secretary shall establish a National Technical Advisory Council (hereafter referred to as the “National TAC”), which shall be governed by the provisions of the Federal Advisory Committee Act (FACA) (Pub. L. 92–463, as amended; 5 U.S.C. App.).
(b)(1) The members of the National TAC must include persons who have knowledge of and expertise in the design and implementation of educational standards, assessments, and accountability systems for all students, including students with disabilities and limited English proficient students, and experts with technical knowledge related to statistics and psychometrics.
(2) The National TAC shall be composed of 10 to 20 members who may meet as a whole or in committees, as the Secretary may determine.
(3) The Secretary shall, through a notice published in the
(i) Solicit nominations from the public for members of the National TAC; and
(ii) Publish the list of members, once selected.
(4) The Secretary shall screen nominees for membership on the National TAC for potential conflicts of interest to prevent, to the extent possible, such conflicts, or the appearance thereof, in the National TAC's performance of its responsibilities under this section.
(c) The Secretary shall use the National TAC to provide its expert opinions on matters that arise during the State Plan review process.
(d) The Secretary shall prescribe and publish the rules of procedure for the National TAC.
The addition reads as follows:
(a)(1)(i) * * *
(ii) In identifying schools for improvement, an LEA—
(A) May base identification on whether a school did not make AYP because it did not meet the annual measurable objectives for the same subject or meet the same other academic indicator for two consecutive years; but
(B) May not limit identification to those schools that did not make AYP only because they did not meet the annual measurable objectives for the same subject or meet the same other academic indicator for the same subgroup under § 200.13(b)(7)(ii) for two consecutive years.
The revision and additions read as follows:
(b) * * *
(4) * * *
(iv) The explanation of the available school choices must be made sufficiently in advance of, but no later than 14 calendar days before, the start of the school year so that parents have adequate time to exercise their choice option before the school year begins.
(5) * * *
(ii) * * *
(B) A brief description of the services, qualifications, and demonstrated effectiveness of the providers referred to in paragraph (b)(5)(ii)(A) of this section, including an indication of those providers who are able to serve students with disabilities or limited English proficient students.
(C) An explanation of the benefits of receiving supplemental educational services.
(iii) The annual notice of the availability of supplemental educational services must be—
(A) Clear and concise; and
(B) Clearly distinguishable from the other information sent to parents under this section.
(c)(1) Except as provided in paragraph (c)(2) of this section, the LEA must prominently display on its Web site, in a timely manner to ensure that parents have current information, the following information regarding the LEA's implementation of the public school choice and supplemental educational services requirements of the Act and this part:
(i) Beginning with data from the 2007–2008 school year and for each subsequent school year, the number of students who were eligible for and the number of students who participated in public school choice.
(ii) Beginning with data from the 2007–2008 school year and for each subsequent school year, the number of students who were eligible for and the number of students who participated in supplemental educational services.
(iii) For the current school year, a list of supplemental educational services providers approved by the State to serve the LEA and the locations where services are provided.
(iv) For the current school year, a list of available schools to which students eligible to participate in public school choice may transfer.
(2) If the LEA does not have its own Web site, the SEA must include on the SEA's Web site the information required in paragraph (c)(1) of this section for the LEA.
The additions and revisions read as follows:
(a) * * *
(1) Makes fundamental reforms to improve student academic achievement in the school;
(4) Is significantly more rigorous and comprehensive than the corrective action that the LEA implemented in the school under § 200.42, unless the school has begun to implement one of the options in paragraph (b)(3) of this section as a corrective action; and
(5) Addresses the reasons why the school was identified for restructuring in order to enable the school to exit restructuring as soon as possible.
(b) * * *
(3) * * *
(ii) Replace all or most of the school staff (which may include, but may not be limited to, replacing the principal) who are relevant to the school's failure to make AYP.
(v) Any other major restructuring of a school's governance arrangement that makes fundamental reforms, such as significant changes in the school's staffing and governance, in order to improve student academic achievement in the school and that has substantial promise of enabling the school to make AYP. The major restructuring of a school's governance may include replacing the principal so long as this change is part of a broader reform effort.
(a) * * *
(2) The LEA must offer this option, through the notice required in § 200.37, so that students may transfer in the school year following the school year in which the LEA administered the assessments that resulted in its identification of the school for improvement, corrective action, or restructuring.
The revisions and additions read as follows:
(a) * * *
(1)(i) * * *
(ii) This promotion must include—
(A) Annual notice to potential providers of—
(
(
(B) Posting on the SEA's Web site, for each LEA—
(
(
(3)(i) * * *
(ii) Indicate on the list those providers that are able to serve students with disabilities or limited English proficient students.
(4) Consistent with paragraph (c) of this section, develop, implement, and publicly report on standards and techniques for—
(iii) Monitoring LEAs' implementation of the supplemental educational services requirements of the Act and this part.
(b) * * *
(2) * * *
(ii) * * *
(B) Are aligned with State academic content and student academic achievement standards;
(C) Are of high quality, research-based, and specifically designed to increase the academic achievement of eligible children; and
(3) In approving a provider, the SEA must consider, at a minimum—
(i) Information from the provider on whether the provider has been removed from any State's approved provider list;
(ii) Parent recommendations or results from parent surveys, if any, regarding the success of the provider's instructional program in increasing student achievement; and
(iii) Evaluation results, if any, demonstrating that the instructional program has improved student achievement.
(c)
(1) An SEA must examine, at a minimum, evidence that the provider's instructional program—
(i) Is consistent with the instruction provided and the content used by the LEA and the SEA;
(ii) Addresses students' individual needs as described in students' supplemental educational services plans under § 200.46(b)(2)(i);
(iii) Has contributed to increasing students' academic proficiency; and
(iv) Is aligned with the State's academic content and student academic achievement standards; and
(2) The SEA must also consider information, if any, regarding—
(i) Parent recommendations or results from parent surveys regarding the success of the provider's instructional program in increasing student achievement; and
(ii) Evaluation results demonstrating that the instructional program has improved student achievement.
The additions read as follows:
(a) * * *
(2) * * *
(iii) * * *
(C) The LEA may count in the amount the LEA is required to spend under paragraph (a) of this section its costs for outreach and assistance to parents concerning their choice to transfer their child or to request supplemental educational services, up to an amount equal to 0.2 percent of its allocation under subpart 2 of part A of Title I of the Act.
(d)
(ii) The LEA must spend the unexpended amount under paragraph (d)(1)(i) of this section in addition to the amount it is required to spend to meet its 20 percent obligation in the subsequent school year.
(2) To spend less than the amount needed to meet its 20 percent obligation, an LEA must—
(i) Meet, at a minimum, the following criteria:
(A) Partner, to the extent practicable, with outside groups, such as faith-based organizations, other community-based organizations, and business groups, to help inform eligible students and their families of the opportunities to transfer or to receive supplemental educational services.
(B) Ensure that eligible students and their parents have a genuine opportunity to sign up to transfer or to obtain supplemental educational services, including by—
(
(
(
(C) Ensure that eligible supplemental educational services providers are given access to school facilities, using a fair, open, and objective process, on the same basis and terms as are available to other groups that seek access to school facilities;
(ii) Maintain records that demonstrate the LEA has met the criteria in paragraph (d)(2)(i) of this section; and
(iii) Notify the SEA that the LEA—
(A) Has met the criteria in paragraph (d)(2)(i) of this section; and
(B) Intends to spend the remainder of its 20 percent obligation on other allowable activities, specifying the amount of that remainder.
(3)(i) Except as provided in paragraph (d)(3)(ii) of this section, an SEA must ensure an LEA's compliance with paragraph (d)(2)(i) of this section through its regular monitoring process.
(ii)(A) In addition to its regular monitoring process, an SEA must review any LEA that—
(
(
(B) The SEA must complete its review by the beginning of the next school year.
(4)(i) If an SEA determines under paragraph (d)(3) of this section that an LEA has failed to meet any of the criteria in paragraph (d)(2)(i) of this section, the LEA must—
(A) Spend an amount equal to the remainder specified in paragraph (d)(2)(iii)(B) of this section in the subsequent school year, in addition to its 20 percent obligation for that year, on choice-related transportation costs, supplemental educational services, or parent outreach and assistance; or
(B) Meet the criteria in paragraph (d)(2)(i) of this section and obtain permission from the SEA before spending less in that subsequent school year than the amount required by paragraph (d)(4)(i)(A) of this section.
(ii) The SEA may not grant permission to the LEA under paragraph (d)(4)(i)(B) of this section unless the SEA has confirmed the LEA's compliance with paragraph (d)(2)(i) of this section for that subsequent school year.
The addition reads as follows:
(d) * * *
(1)(i) * * *
(ii) In identifying LEAs for improvement, an SEA—
(A) May base identification on whether an LEA did not make AYP because it did not meet the annual measurable objectives for the same subject or meet the same other academic indicator for two consecutive years; but
(B) May not limit identification to those LEAs that did not make AYP only because they did not meet the annual measurable objectives for the same subject or meet the same other academic indicator for the same subgroup under § 200.13(b)(7)(ii) for two consecutive years.
The revisions and addition read as follows:
A teacher described in § 200.55(a) and (b)(1) is a “highly qualified teacher” if the teacher meets the requirements in paragraph (a) and paragraph (b), (c), or (d) of this section.
(d) A special education teacher is a “highly qualified teacher” under the Act if the teacher meets the requirements for a “highly qualified special education teacher” in 34 CFR 300.18.
The following appendix will not appear in the Code of Federal Regulations.