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Rural Utilities Service, USDA.
Final rule.
The Rural Utilities Service (RUS) is amending its regulations for the guarantee program for cooperative and other not-for-profit lenders that make loans for eligible electric and telephone purposes. These proposed amendments implement changes adopted in the Food, Conservation and Energy Act of 2008 (Pub. L. 110-246). The intended effect is to update agency regulations to reflect current statutory authority.
Karen L. Larsen, Policy Analysis and Loan Management Staff, Office of the Assistant Administrator, Electric Programs, Rural Utilities Service, United States Department of Agriculture, 1400 Independence Avenue, SW., Room 5165-S, Washington, DC 20250-1560. Telephone (202) 720-9545; e-mail:
This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
The Catalog of Federal Domestic Assistance (CFDA) number assigned to the Electric Loan and Loan Guarantee program is 10.850 Rural Electrification Loans and Loan Guarantees. The catalog is available on the Internet and the General Services Administration's (GSA) free CFDA Web site at
This rule is excluded from the scope of Executive Order 12372, Intergovernmental Consultation, which may require consultation with State and local officials.
This rule contains no new reporting or recordkeeping burdens that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
The Administrator of RUS has determined that this rule will not significantly affect the quality of the human environment as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321
It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Agency is not required by 5 U.S.C. 551
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards in section 3 of the Executive Order.
This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments for the private sector. Thus, this rule is not subject to the requirements of section 202 and 205 of the Unfunded Mandates Reform Act of 1995.
The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the States is not required.
This executive order imposes requirements on Federal agencies in the development of regulatory policies that have tribal implications or preempt tribal laws. The RUS has determined that this rule relating to loan guarantees for non-profit lenders does not pre-empt tribal laws, or have a substantial direct effect on either one or more Indian tribe(s) or on the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175.
This rule does not have any adverse effects on energy supply, distribution, or use should the proposal be implemented. The Agency has determined that the preparation of Statement of Energy Effects under Executive Oder 13211 is not required.
The Agency is committed to complying with the E-Government Act,
On February 5, 2010, the Rural Utilities Service (RUS) published a proposed rule, 7 CFR Part 1720, Guarantees for Bonds and Notes issued for Electrification and Telephone Purposes (75 FR 5902). This rule amends the Agency's policies and procedures for granting guarantees to eligible cooperatives and other not-for-profit lenders that make loans for eligible electric and telephone purposes under the Rural Electrification Act of 1936 (the “RE Act”) (7 U.S.C. 901
The RE Act authorizes the Secretary to guarantee and make loans to persons, corporations, States, territories, municipalities, and cooperative, non-profit, or limited-dividend associations for the purpose of furnishing or improving electric and telephone service in rural areas. Responsibility for administering electrification and telecommunications loan and guarantee programs along with other functions the Secretary deemed appropriate have been assigned to RUS under the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6941
Section 6101 of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) (FSRIA) amended the RE Act to add section 313A (7 U.S.C. 940c-1) entitled “Guarantees for Bonds and Notes Issued for Electrification or Telephone Purposes.” This section created a new loan guarantee program (313A program) for eligible non-profit lenders. Final regulations implementing the program were published in the
Section 6106(a)(1)(A) of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) amended section 313A of the RE Act extending the program authorization from September 30, 2007, to September 30, 2012, expanding eligible loan purposes, and setting an annual limit of $1,000,000,000 on the total amount of guarantees approved by the Secretary during a fiscal year, subject to the availability of funds. Prior to the 2008 amendment the total amount of a lender's bonds and notes that could be guaranteed under this section was limited to the total amount of loans made by the lender concurrently with a loan approved by the Secretary under the RE Act.
Section 6106(a)(1)(B) further amended section 313A of the RE Act by removing the provision prohibiting the recipient from using any amount obtained from the reduction in funding costs as a result of a guarantee under section 313A to reduce the interest rate charged on a new or concurrent loan. New loan guarantees will not be subject to this limitation.
The proposed rule was published on February 5, 2010, at 75 FR 5902. Comments were due on April 6, 2010.
RUS received two written public comments via the Regulations.gov portal on the proposed rule amending 7 CFR part 1720, the regulations implementing section 313A of the RE Act (7 U.S.C. 940c-1).
CoBank, ACB (CoBank), a member of Farm Credit System overseen by the Farm Credit Administration (FCA) and a major lender to electric cooperatives, including many RUS borrowers, expressed its concerns that part 1720 as proposed, if implemented without change or clarification “could be read to preclude entities such as CoBank from participating in the program as a guaranteed lender.” CoBank commented on an unchanged section of the existing rule (7 CFR 1720.4(b)(1)) relating to restrictions on patronage and dividend distributions in the event of a decline in credit quality of a participating lender and requested clarification of lender eligibility under 7 CFR 1720.5(a)(1).
The National Rural Utilities Cooperative Finance Corporation (CFC), an existing participant in the program, commented on two proposed additions to the evaluation criteria in 7 CFR 1720.7(b) that the Agency would use to consider applications competitively.
CoBank contends that the limitation imposed by existing section 1720.4(b)(1) on the payment of cash patronage and dividends to guaranteed lenders having a credit rating below “A__” on senior secured debt (without regard to the guarantee) is problematic because CoBank does not issue senior secured debt and, accordingly, could never be in compliance with this condition as it could never obtain a senior secured debt rating. In its comments, CoBank seeks clarification that this regulation does not apply to institutions that do not issue senior secured debt.
Electric power, Electric utilities, Loan programs—energy, Reporting and recordkeeping requirements, Rural areas.
7 U.S.C. 901
This part prescribes regulations implementing a guarantee program for bonds and notes issued for electrification or telephone purposes authorized by section 313A of the Rural Electrification Act of 1936 (7 U.S.C. 940c-1).
The Rural Electrification Act of 1936 (the “RE Act”) (7 U.S.C. 901
(a) * * *
(2) At the time the guarantee is executed, the total principal amount of guaranteed bonds outstanding would not exceed the principal amount of outstanding eligible loans previously made by the guaranteed lender;
(3) The proceeds of the guaranteed bonds will not be used directly or indirectly to fund projects for the generation of electricity; and
(4) The guaranteed lender will not use any amounts obtained from the reduction in funding costs provided by a loan guarantee issued prior to June 18, 2008, to reduce the interest rates borrowers are paying on new or outstanding loans, other than new concurrent loans as provided in part 1710 of this chapter.
(b) * * *
(2) Maintain sufficient collateral equal to the principal amount outstanding, for guaranteed lenders having a credit rating below “A−” on its senior secured debt without regard to the guarantee, or in the case of a lender that does not have senior secured debt, a corporate (counterparty) credit rating below “A−” without regard to the guarantee. Collateral shall be in the form of specific and identifiable unpledged securities equal to the value of the guaranteed amount. In the case of a guaranteed lender's default, the U.S. government claim shall not be subordinated to the claims of other creditors, and the indenture must provide that in the event of default, the government has first rights on the asset. Upon application and throughout the term of the guarantee, guaranteed lenders not subject to collateral pledging requirements shall identify, with the concurrence of the Secretary, specific assets to be held as collateral should the credit rating of its senior secured debt, or its corporate credit rating, as applicable, without regard to the guarantee fall below “A−.” The Secretary has discretion to require collateral at any time should circumstances warrant.
(a) * * *
(1) A bank or other lending institution organized as a private, not-for-profit cooperative association, or otherwise organized on a non-profit basis; and
(b) * * *
(1) The guaranteed lender must furnish the Secretary with a certified list of the principal balances of eligible loans then outstanding and certify that such aggregate balance is at least equal to the sum of the proposed principal amount of guaranteed bonds to be issued, and any previously issued guaranteed bonds outstanding; and
(a) * * *
(7) Evidence of a credit rating, from a Rating Agency, on its senior secured debt or its corporate credit rating, as applicable, without regard to the government guarantee and satisfactory to the Secretary; and
(b) * * *
(3) The applicant's demonstrated performance of financially sound business practices as evidenced by reports of regulators, auditors and credit rating agencies;
(4) The extent to which the applicant is subject to supervision, examination, and safety and soundness regulation by an independent federal agency;
(5) The extent of concentration of financial risk that RUS may have resulting from previous guarantees made under section 313A of the RE Act; and
(6) The extent to which providing the guarantee to the applicant will help reduce the cost and/or increase the supply of credit to rural America, or generate other economic benefits, including the amount of fee income available to be deposited into the Rural Economic Development Subaccount, maintained under section 313(b)(2)(A) of the RE Act (7 U.S.C. 940c(b)(2)(A)), after payment of the subsidy amount.
(d)
(a) * * *
(3) Prior to the issuance of the guarantee, the applicant must certify to the Secretary that the proceeds from the guaranteed bonds will be applied to fund new eligible loans under the RE Act, to refinance concurrent loans, or to refinance existing debt instruments of
(4) The applicant provides a certified list of eligible loans and their outstanding balances as of the date the guarantee is to be issued;
(8) The applicant shall provide evidence of a credit rating on its senior secured debt or its corporate credit rating, as applicable, without regard to the guarantee and satisfactory to the Secretary; and
(a) * * *
(5) Credit rating, by a Rating Agency, on its senior secured debt or its corporate credit rating, as applicable, without regard to the guarantee and satisfactory to the Secretary; and
In a given year the maximum amount of guaranteed bonds that the Secretary may approve will be subject to budget authority, together with receipts authority from projected fee collections from guaranteed lenders, the principal amount of outstanding eligible loans made by the guaranteed lender, and Congressionally-mandated ceilings on the total amount of credit. The Secretary may also impose other limitations as appropriate to administer this guarantee program.
U.S. Immigration and Customs Enforcement, DHS.
Final rule.
This final rule amends Department of Homeland Security regulations to provide that employers and recruiters or referrers for a fee who are required to complete and retain the Form I-9, Employment Eligibility Verification, may sign this form electronically and retain this form in an electronic format. This final rule makes minor changes to an interim final rule promulgated in 2006.
This final rule is effective August 23, 2010.
Allen Vanscoy, Office of Investigations, U.S. Immigration and Customs Enforcement, 500 12th St., SW., Washington, DC 20024. Telephone (202) 732-5798 (not a toll-free number).
Section 274A of the Immigration and Nationality Act, as amended (INA), 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986. To comply with the law, an employer, or a recruiter or referrer for a fee, is responsible for the completion of a Form I-9, Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens. 8 CFR 274a.2.
The completed Form I-9 is not filed with the Department of Homeland Security (DHS). Rather, the Form I-9 is retained by the employer who must make it available for inspection upon a request by Immigration and Customs Enforcement (ICE) investigators or other authorized federal officials. Employers are required to retain a Form I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. 8 CFR 274a.2(c)(2). Recruiters or referrers for a fee are required to retain each Form I-9 for three years after the date of hire.
The Form I-9 has been available to the public in numerous paper and electronic means since 1986. The Form I-9 is available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form.
This final rule permits employers to complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9), as long as certain performance standards set forth in this final rule for the electronic filing system are met. DHS has separately revised the substantive documentary requirements for employment verification that form the basis for the Form I-9.
In June 2006, DHS published an interim final rule to permit electronic signature and storage of the Form I-9. 71 FR 34510 (June 15, 2006). The interim rule implemented Public Law 108-390, 118 Stat. 2242 (Oct. 30, 2004), and INA section 274A, 8 U.S.C. 1324a. The interim rule amended DHS regulations to permit employers to complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9), as long as certain performance standards set forth in this final rule for the electronic filing system are met. See 8 CFR 274a.2. This final rule responds to public comments received on the interim final rule and adopts the interim final rule with changes noted below.
In this final rule, DHS makes minor modifications to 8 CFR 274a.2 to clarify certain provisions that:
• Employers must complete a Form I-9 within three business (not calendar) days;
• Employers may use paper, electronic systems, or a combination of paper and electronic systems;
• Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
• Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
• Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.
This final rule responds to the nine comments received from trade associations and agencies and
Several commenters expressed concern regarding the timeframes involved in completing the Form I-9. A commenter questioned the meaning of the term “at the time of hire.” The commenters were concerned with the language that required the employer to complete the verification section of a Form I-9 within three (3) days and suggested that the final rule specifically state three (3) “business days.” This question is clarified on the revised Form I-9 (rev. 06/05/07) that states: “Employers must complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins.” The interim rule inadvertently omitted the word “business.” In this final rule DHS has revised 8 CFR 274a.2(b)(1)(ii)(B) to state three “business” days instead of the implied three calendar days.
Several commenters raised concerns about the employers' ability to implement new systems as technology changes and improves. Commenters suggested that to specify processes and systems in this final rule would likely inhibit the use of future developments and the resulting cost savings and improved efficiencies. The interim final rule and this final rule do not specify any technology based system, but provide only for a performance-based system that ensures accessibility.
One commenter asked if an employer could use a combination of electronic and paper storage systems for storing a Form I-9. In response, DHS has revised 8 CFR 274a.2(b)(2)(i) to provide that employers may use paper, electronic systems, or a combination of the two.
One commenter asked if electronic storage systems that permit the storage of all data but do not produce a facsimile of the Form I-9 could be used. DHS believes the existing regulations establish that an employer must be able to
Several commenters requested guidance on the storage of ancillary documents used to verify an employee's identity and eligibility to work in the United States. Employers may, but are not required to, copy or make an electronic image of a document used to comply with the requirements of INA section 274A(b), 8 U.S.C. 1324a(b). 8 CFR 274a.2(b)(3). Employers should be cautious, however, to apply consistent policies and procedures for all employees to avoid a potential of discrimination.
A commenter asked if the Form I-9 could be stored with the employee's other employment records. Similarly, several commenters were concerned about storage of documents they use to verify an employee's identity and employment authorization. The Form I-9 and verification documentation may be stored in a separate Form I-9 file or as part of the employee's other employment records. 8 CFR 274a.2(b)(3). Further, DHS has added language in 8 CFR 274a.2(e)(4) to make clear that employers may change electronic storage systems as long as such systems meet the requirements of this rule.
Two commenters asked whether the entire Form I-9 must be retained or only the pages on which the employer and employee enter data. Only the pages of the Form I-9 containing employer and employee-entered data need be retained. 8 CFR 274a.2(e)(1). Other pages of the current form are instructions for completing the Form I-9 and need not be retained by the employer.
Several commenters inquired if DHS would provide additional guidance concerning the use of contract services for the electronic storage of the Form I-9. DHS does not intend to provide any additional guidance or requirements for employers choosing to use contract electronic storage and generation systems. DHS intends that the regulation allow for flexibility.
Several commenters suggested that the audit trail requirements of 8 CFR 274a.2(g)(1)(iv) would be burdensome, particularly for small businesses, but could pose issues for all businesses. Commenters stated that the audit trail requirement would significantly diminish any cost savings over the more traditional paper-based systems, particularly if the audit trail must include every accession of the record. DHS agrees with comments that suggested that it is unnecessary to require an audit trail to record every time a Form I-9 is simply viewed or accessed but not modified. An audit trail is important, however, whenever a record is created, completed, altered, updated, or otherwise modified. Accordingly, 8 CFR 274a.2(g)(1)(iv) has been modified to ensure that whenever the electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken. Additionally, DHS revised 8 CFR 274a.2(e)(1)(iv) to delete the requirement that the electronic storage system be searchable by any data element and has inserted language that requires searchability to be consistent with 8 CFR 274a.2(e)(6).
A commenter stated the word “documents” should be used instead of the term “books” in 8 CFR 274a.2(e)(6). DHS agrees and has adopted the recommendation.
Several commenters objected to the requirement in 8 CFR 274a.2(h)(1)(iii) that a printed transaction record be given to the employee. Commenters argued it is contrary to the goals of a paperless system, and that the requirements before this rule did not require the employer to provide an employee with a printed transaction record. One commenter noted that some companies process thousands of new employees annually and another noted that, in the modern work environment, many employees work off-site. Overall, these commenters expressed concern that requiring paper receipts could be a significant burden to businesses both large and small. Commenters noted that the employer, not the employee, must demonstrate compliance.
DHS disagrees. DHS believes this requirement is feasible and not, in most cases, unduly burdensome. DHS believes that providing a transaction receipt, such as a printed copy of the electronic record, may be an important protective step for the employee if errors are later discovered. The employee may not be the person inputting the information into the electronic record. In response to comments, however, DHS has amended this final rule to require employers to provide or transmit a confirmation of the transaction only if an employee requests it. In addition, DHS removed the language requiring the employer to provide the confirmation at the time of the transaction. DHS understands that in certain situations it
One commenter objected to the requirement in 8 CFR 274a.2(e)(3) that electronic generation or storage systems not be subject to license or contract restrictions that would inhibit access by U.S. Government agencies to those Form I-9 preparation and storage systems. The commenter also objected to the requirement that an employer give the government unlimited access to the employer's electronic generation and storage system. DHS declines to alter 8 CFR 274a.2(e)(3). The provision does not require unlimited government access; it prevents contract and license restrictions from denying government access to electronically stored Form I-9.
A number of comments suggested improvements to the Form I-9, including revisions to the ancillary documents list used for verification and to improve the readability of the Form I-9. This rulemaking concerns only the storage of the Form I-9, not its content. Those issues, therefore, are beyond the scope of this rulemaking. DHS has separately amended the regulatory requirements for documentation of employment eligibility and this rule makes minor technical corrections to comport with that rulemaking.
Finally, one commenter suggested that requiring an employer to download the Form I-9 electronically poses a burden on small businesses that do not use a computer or the internet in their business operations. The interim rule and this final rule do not require that Form I-9 be downloaded electronically from any source. Form I-9 continues to be available in the paper format that can be obtained, upon request, from USCIS, at (800) 870-3676 or (800) 375-5283. The interim rule and this final rule simply provide an option for an employer to electronically store the Form I-9.
The Regulatory Flexibility Act (RFA) analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). DHS previously determined that good cause exists under 5 U.S.C. 553(b)(B) to exempt this rule from the notice and comment requirements of 5 U.S.C. 553(b). Therefore, no RFA analysis under 5 U.S.C. 603 or 604 is required for this rule. DHS notes, however, that because electronic signature and storage technologies are optional, DHS expects that small entities will choose electronic methods only if those methods will save costs, lessen overall burden, or otherwise improve efficiency.
This final rule will not result in any expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted for inflation) or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This final rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104-121, tit. II, 110 Stat. 847, 857 (March 29, 1996), 5 U.S.C. 601 note. This final rule will not result in an annual effect of $100 million or more on the economy; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This final rule is considered by DHS to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, the rule has been submitted to the Office of Management and Budget (OMB) for review.
DHS analyzed the cost and benefits of this final rule as required by Executive Order 12866 section 1(b)(6), and made a reasoned determination that the benefits of this final rule justify its costs to the public and Government. Whether to create and store the Form I-9 in an electronic or traditional paper format will be within the discretion of employers or recruiters or referrers for a fee, who are already required under 8 CFR 274a.2 to retain the Form I-9. This final rule permits the employers to continue using their current Form I-9 policies and practices to prepare and store the Form I-9 in the paper format; electing to prepare and store the Form I-9 electronically is voluntary. The regulation does not require any additional actions or expenses, it merely provides employers with an additional option that may result in improved efficiency and cost-savings.
This final rule 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
The revisions and additions read as follows:
(b) * * *
(1) * * *
(ii) * * *
(B) Complete section 2—“Employer Review and Verification”—on the Form I-9 within three business days of the hire and sign the attestation with a handwritten signature or electronic signature in accordance with paragraph (i) of this section.
(2) * * *
(i) A paper (with original handwritten signatures), electronic (with acceptable electronic signatures that meet the requirements of paragraphs (h) and (i) of this section or original paper scanned into an electronic format, or a combination of paper and electronic formats that meet the requirements of paragraphs (e), (f), and (g) of this section), or microfilm or microfiche copy of the original signed version of Form I-9 must be retained by an employer or a recruiter or referrer for a fee for the following time periods:
(ii) Any person or entity required to retain Forms I-9 in accordance with this section shall be provided with at least three business days notice prior to an inspection of Forms I-9 by officers of an authorized agency of the United States. * * *. Nothing in this section is intended to limit the subpoena power under section 235(d)(4) of the Act.
(3)
(e) * * * (1) Any person or entity who is required by this section to complete and retain Forms I-9 may complete or retain electronically only those pages of the Form I-9 on which employers and employees enter data in an electronic generation or storage system that includes:
(iv) In the case of electronically retained Forms I-9, a retrieval system that includes an indexing system that permits searches consistent with the requirements of paragraph (e)(6) of this section; and
(4) A person or entity who chooses to complete or retain Forms I-9 electronically may use one or more electronic generation or storage systems. Each electronic generation or storage system must meet the requirements of this paragraph, and remain available as long as required by the Act and these regulations. Employers may implement new electronic storage systems provided:
(i) All systems meet the requirements of paragraphs (e), (f), (g), (h) and (i) of this section; and
(ii) Existing Forms I-9 are retained in a system that remains fully accessible.
(6) An “indexing system” for the purposes of paragraphs (e)(1)(iv) and (e)(5) of this section is a system that permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system. * * * The requirement to maintain an indexing system does not require that a separate electronically stored documents and records description database be maintained if comparable results can be achieved without a separate description database.
(8) * * *
(i) * * *. Generally, an audit trail is a record showing who has accessed a computer system and the actions performed within or on the computer system during a given period of time;
(ii) Provide a requesting agency of the United States with the resources (e.g., appropriate hardware and software, personnel and documentation) necessary to locate, retrieve, read, and reproduce (including paper copies) any electronically stored Forms I-9, any supporting documents, and their associated audit trails, reports, and other data used to maintain the authenticity, integrity, and reliability of the records; and
(f) * * *
(3) * * *. Nothing in this section is intended to limit the subpoena power of an agency of the United States under section 235(d)(4) of the Act.
(g) * * *
(1) * * *
(iv) Ensure that whenever the electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record is created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.
(h) * * *
(1) * * *
(iii) Upon request of the employee, provide a printed confirmation of the transaction to the person providing the signature.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
The U.S. Department of Energy (DOE) repeals the regulatory provisions establishing the cooking efficiency test procedure for microwave ovens under the Energy Policy and Conservation Act (EPCA). DOE has determined that the microwave oven test procedure to measure the cooking efficiency does not produce accurate and repeatable test results and is unaware of any test procedures that have been developed that address the concerns with the DOE microwave oven cooking efficiency test procedure.
The public may review copies of all materials related to this rulemaking at the U.S. Department of Energy, Resource Room of the Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards at the above telephone number for additional information regarding visiting the Resource Room.
Mr. Wes Anderson, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7335. E-mail:
Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7796. E-mail:
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291
Manufacturers of covered products must use DOE test procedures to certify that their products comply with energy conservation standards adopted under EPCA and to represent the efficiency of their products. (42 U.S.C. 6295(s); 42 U.S.C. 6293(c)) DOE must also use DOE test procedures in any action to determine whether covered products comply with EPCA standards. (42 U.S.C. 6295(s)) Criteria and procedures for DOE's adoption and amendment of such test procedures, as set forth in EPCA, require that test procedures be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. Test procedures must also not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
EPCA also specifies that State law providing for the disclosure of information with respect to any measure of energy consumption is superseded to the extent that such law requires testing or the use of any measure of energy consumption or energy descriptor in any manner other than provided under section 323 of EPCA. (42 U.S.C. 6297(a)(1)(A); 42 U.S.C. 6297(f)(3)(G)) Therefore, in the absence of a Federal test procedure or accompanying conservation standard, States may prescribe their own test procedures and standards pursuant to applicable State law.
DOE's test procedure for microwave ovens is codified at appendix I to subpart B of Title 10 of the Code of Federal Regulations (CFR). That test procedure was part of an October 3, 1997, final rule that also revised the test procedures for other cooking products to measure their efficiency and energy use more accurately. 62 FR 51976. The microwave oven test procedure incorporates portions of the International Electrotechnical Commission (IEC) Standard 705-1998 and Amendment 2-1993, “Methods for Measuring the Performance of Microwave Ovens for Households and Similar Purposes,” (IEC Standard 705) and measures microwave oven cooking efficiency and energy factor (EF).
The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-12), which amended EPCA, established prescriptive standards for kitchen ranges and ovens, but no standards were established for microwave ovens. (42 U.S.C. 6295(h)) The NAECA amendments also required DOE to conduct two cycles of rulemakings to determine whether to revise the standard. DOE undertook the first cycle of these rulemakings and issued a final rule on September 8, 1998 (63 FR 48038), in which DOE found that no amended standards were justified for electric cooking products, including microwave ovens. In a final rule published on April 8, 2009 (74 FR 16040) (hereafter referred to as the appliance standards rulemaking), DOE established amended standards for gas cooking products, but again found that no active mode cooking efficiency standards were justified for electric cooking products, including microwave ovens. This rulemaking completed the second cycle of rulemakings required by
The regulatory definition of “microwave oven” is set forth at 10 CFR 430.2. “Microwave oven” is defined as “a class of kitchen ranges and ovens which is a household cooking appliance consisting of a compartment designed to cook or heat food by means of microwave energy.” The existing test procedure to measure energy efficiency of microwave ovens is codified at 10 CFR 430.23(i) and 10 CFR part 430, subpart B, appendix I, and the sampling plan, that is, the specific requirements for the number of units to be tested, is set forth at 10 CFR 430.24(i).
The current DOE microwave oven test procedure incorporates portions of IEC Standard 705 for measuring the cooking performance of microwave ovens. The testing methods measure the amount of energy required to raise the temperature of 1 kilogram of water by 10 degrees Celsius (°C) under controlled conditions. The ratio of usable output power over input power describes the EF, which is also a measure of the cooking efficiency.
As part of the appliance standards rulemaking, DOE tested 32 microwave ovens, and the Association of Home Appliance Manufacturers (AHAM) independently tested 21 additional units, for a total of 53 microwave ovens, according to the current DOE microwave oven test procedure.
DOE also observed significant variability in the cooking efficiency measurements obtained using the DOE microwave oven test procedure for the 53 units tested by DOE and AHAM. The data show test-to-test variability of several EF percentage points (0 to 2.5) for a given microwave oven (
DOE also noted that IEC Standard 705 has been declared obsolete by IEC and the current IEC test procedure is IEC Standard 60705-2006, “Household microwave ovens—Methods of measuring performance” (IEC Standard 60705). In order to evaluate the key differences between these two IEC test procedures, DOE conducted a series of tests as part of the appliance standards rulemaking on a sub-sample of its microwave ovens (12 units total) to compare the efficiency measurements using both IEC test procedures. The general methodology for each test procedure is largely the same, and consists of heating 1 kg of water from about 10 °C below room temperature to room temperature, using the maximum power setting on the microwave oven. The input power over the duration of the test, and thus energy consumed during the test, are compared to the energy absorbed by the test load to obtain the efficiency measurement. Table II.1 below summarizes key differences noted between the test procedures that can potentially impact the final energy efficiency calculation.
As part of this testing to compare the two IEC test procedures, DOE conducted tests to evaluate the variation of test-to-test efficiency results for an individual microwave oven. DOE test results, shown below in Table II.2, showed that the test-to-test variation using IEC Standard 60705 ranged from 0 to 5 percent of the average value, which was much greater than the comparable variation for IEC Standard 705, whose test-to-test variation in efficiency results ranged from 0 to 1.5 percent for the same sub-sample of microwave ovens. This larger range associated with IEC
In response to the October 2008 TP NOPR, DOE received comments from interested parties regarding the accuracy and repeatability of the existing DOE microwave oven test procedure for measuring cooking efficiency. The Appliance Standards Awareness Project (ASAP) cited substantial problems with the test procedure for measuring cooking efficiency that have not yet been addressed, including a lack of repeatable and consistent results and the possibility that the challenge of dealing with cooking efficiency is being compounded by rating the cooking efficiency of combination ovens in their various cooking modes. (ASAP, Public Meeting Transcript, No. 7 at p. 25) Pacific Gas & Electric (PG&E) noted that heat transfer in a microwave oven depends on the specific resistivity of the load, and that pure water has relatively low specific resistivity, and items that might be cooked in a microwave oven would have more salt and thus absorb microwave energy more efficiently than pure water. PG&E noted that, while water is easily obtainable for testing, using it probably results in lower cooking efficiency measurements than would be expected from using actual food products. (PG&E, Public Meeting Transcript, No. 7 at pp. 44-45)
DOE is unaware of any test procedures that have been developed that address the concerns with the DOE microwave oven cooking efficiency test procedure discussed above. DOE is also unaware of any research or data on consumer usage indicating what a representative food load would be, or any data showing how changes to the representative test load would affect the measured EF or repeatability of test results.
Because there are currently no existing test procedures that produce representative and repeatable cooking efficiency measurements for microwave ovens, and because of the issues with using the existing DOE microwave oven test procedure, as discussed above, including the large test-to-test variation in cooking efficiency measurements, DOE is repealing the provisions in the existing microwave oven test procedure relating to the measurement of cooking efficiency and EF, and the regulatory provision specifying requirements for the number of units to be tested pursuant to the test procedure (
DOE will maintain the regulatory definition of microwave oven because kitchen ranges and ovens are listed as covered products in EPCA (42 U.S.C. 6292(10)) and because DOE is currently considering amendments to the microwave oven test procedure to measure standby and off mode energy use. DOE plans to initiate a separate rulemaking process to consider new provisions for measuring microwave oven energy efficiency in active (cooking) mode and has published a notice of public meeting to discuss active mode test procedures elsewhere in today's
Today's regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Department of Energy finds good cause to waive notice and comment on these regulations pursuant to 5 U.S.C. 533(b)(B), and the 30-day delay in effective date pursuant to 5 U.S.C. 553(d). Notice and comment are unnecessary and contrary to the public interest because this final rule is repealing a test procedure that DOE has determined to not be able to produce accurate and repeatable test results. Interested parties were provided with an opportunity to comment on the active mode test procedure in the October 2008 TP NOPR and responded in support of DOE's determination. In addition, DOE previously determined that standards for microwave ovens
The Regulatory Flexibility Act (5 U.S.C. 601
Today's final rule contains no new record-keeping requirements. Therefore, today's final rule would not impose any new reporting requirements requiring clearance by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 64 FR 43255 (August 4, 1999). The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States, and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in developing such regulations. 65 FR 13735. DOE examined this final rule and determined that it would not preempt State law and 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. Executive Order 13132 requires no further action.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and (6) other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate.” UMRA requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect such governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. (The policy is also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Today's final rule would have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this final rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's final rule and concluded that it is consistent with applicable policies in the OMB and DOE guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA a Statement of Energy Effects for any proposed significant energy action. The definition of a “significant energy action” is any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal were to be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's final rule is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of OIRA also did not designate the final rule as a significant energy action. Therefore, it is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the DOE Organization Act (Pub. L. 95-91), DOE must comply with section 32 of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal Energy Administration Authorization Act of 1977 (FEAA; Pub. L. 95-70) (15 U.S.C. 788). Section 32 essentially provides that, where a proposed rule authorizes or requires use of commercial standards, the rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition. This final rule to repeal the test procedure for determining the energy efficiency of microwave ovens does not authorize or require the use of any commercial standards. Therefore, no consultation with either DOJ or FTC is required.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of today's rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
The Assistant Secretary of DOE's Office of Energy Efficiency and Renewable Energy has approved publication of today's final rule.
Administrative practice and procedure, Energy conservation, Household appliances.
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(i)
(2) The cooking efficiency for conventional cooking tops and conventional ovens shall be the ratio of the cooking energy output for the test to the cooking energy input for the test, as determined according to 4.2.1 and 4.1.3, respectively, of appendix I to this
(4) The energy factor for conventional ranges, conventional cooking tops, and conventional ovens shall be the ratio of the annual useful cooking energy output to the total annual energy input, as determined according to 4.3, 4.2.3, 4.1.4, respectively, of Appendix I to this subpart. The final energy factor values shall be rounded off to three significant digits.
(12) Other useful measures of energy consumption for conventional ranges, conventional cooking tops, and conventional ovens shall be those measures of energy consumption which the Secretary determines are likely to assist consumers in making purchasing decisions and which are derived from the application of appendix I to this subpart.
(i)(1) Except as provided in paragraph (i)(2) of this section, for each basic model of conventional cooking tops, and conventional ovens a sample of sufficient size shall be tested to insure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be no less than the higher of:
(A) the mean of the sample or
(B) the upper 97
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be no greater than the lower of:
(A) the mean of the sample or
(B) the lower 97
The revisions read as follows:
2.2.1
2.5
2.6
2.8 [Reserved]
2.9.1.1
2.9.1.2
2.9.3.1
2.9.5
3.1
3.1.1
3.1.1.1
3.1.2
4.3
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding an existing airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI for EMBRAER Model ERJ 170 airplanes describes the unsafe condition as:
It has been found the occurrence of an engine in-flight shutdown caused by the LPCV [low pressure check valves] failing to close due to excessive wear, which leads to the concern that such fault may be present in both engines of a given aircraft.
This AD becomes effective August 26, 2010.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 26, 2010.
You may examine the AD docket on the Internet at
Kenny Kaulia, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2848; fax (425) 227-1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
It has been found the occurrence of an engine in-flight shutdown caused by the LPCV [low pressure check valves] failing to close due to excessive wear, which leads to the concern that such fault may be present in both engines of a given aircraft.
An occurrence of an uncommanded engine in-flight shutdown (IFSD) was reported on 20 Sep. 2005, which was caused by an ERJ 170 defective LPCV [part number] P/N 1001447-3 logging 3900 Flight Hours (FH). The valve failed to close due to excessive wear. Despite there were no IFSD related to LPCV P/N 1001447-4 failure, some ERJ 190 valves P/N 1001447-4 logging around 2472 FH were inspected and presented cracks due to low cycle fatigue. Since this failure mode also might lead to an engine in-flight shutdown and since both engines of the airplane have the same valves, there is a possibility of an occurrence of a dual engine IFSD due to LPCV failure.
We gave the public the opportunity to participate in developing this AD. We considered the comment received. The Air Line Pilots Association, International (ALPA), supports the NPRM.
Since we issued the NPRM, we have received Revision 6, of EMBRAER 170 Maintenance Review Board Report (MRBR), MRB-1621, dated January 14, 2010. We have updated the final rule to reference EMBRAER 170 Maintenance Review Board Report (MRBR), MRB-1621, Revision 6, dated January 14, 2010. We have added paragraph (j)(14) to this final rule to give credit for revising the maintenance program to include maintenance Task 36-11-02-002 (Low Stage Bleed Check Valve) specified in Section 1 of the EMBRAER 170 Maintenance Review Board Report (MRBR), MRB-1621, Revision 5, dated November 5, 2008.
We also revised paragraph (j)(13) of this AD to clarify that doing a replacement before the effective date of this AD is acceptable for compliance with a replacement specified in paragraph (j)(1) of this AD.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect about 231 products of U.S. registry.
The actions that are required by AD 2007-16-09 and retained in this AD, which are provided in the following table, provide the estimated costs, at an average labor rate of $85 per work hour, for U.S. operators to comply with this AD. The parts manufacturer states that it will supply required parts to operators at no cost.
We estimate that it will take about 6 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $4,219 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,092,399, or $4,729 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective August 26, 2010.
(b) This AD supersedes AD 2007-16-09, Amendment 39-15148.
(c) This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1) Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and
(2) Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes; equipped with Hamilton Sundstrand LPCV having P/N 1001447-3 or 1001447-4.
(d) Air Transport Association (ATA) of America Code 36: Pneumatic.
(e) The mandatory continuing airworthiness information (MCAI) for EMBRAER Model ERJ 170 airplanes states:
It has been found the occurrence of an engine in-flight shutdown caused by the LPCV [low pressure check valves] failing to close due to excessive wear, which leads to the concern that such fault may be present in both engines of a given aircraft.
An occurrence of an uncommanded engine in-flight shutdown (IFSD) was reported on 20 Sep. 2005, which was caused by an ERJ 170 defective LPCV P/N 1001447-3 logging 3,900 Flight Hours (FH). The valve failed to close due to excessive wear. Despite there were no IFSD related to LPCV P/N 1001447-4 failure, some ERJ 190 valves P/N 1001447-4 logging around 2472 FH were inspected and presented cracks due to low cycle fatigue. Since this failure mode also might lead to an engine in-flight shutdown and since both engines of the airplane have the same valves, there is a possibility of an occurrence of a dual engine IFSD due to LPCV failure.
Restatement of Requirements of AD 2005-23-14, With Revised Service Information:
(f) For Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes: Within 100 flight hours after November 29, 2005 (the effective date of AD 2005-23-14, which was superseded by AD 2007-16-09), or prior to the accumulation of 3,000 total flight hours, whichever occurs later, replace the low-stage check valve and associated seals of the RH engine's engine bleed system with a new check valve and new seals, in accordance with the Accomplishment Instructions of EMBRAER Alert Service Bulletin 170-36-A004, dated September 28, 2005; or paragraph 3.C. of the Accomplishment Instructions of EMBRAER Service Bulletin 170-36-0004, dated November 18, 2005, or Revision 01, dated March 10, 2008. As of the effective date of this AD, only use EMBRAER Service Bulletin 170-36-0004, Revision 01, dated March 10, 2008. Repeat the replacement thereafter at intervals not to exceed 3,000 flight hours.
(g) Although EMBRAER Alert Service Bulletin 170-36-A004, dated September 28, 2005, specifies to send removed check valves to the manufacturer, this AD does not include that requirement.
Restatement of Certain Requirements of AD 2007-16-09, With Revised Service Information:
(h) For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes: Within 300 flight hours after September 13, 2007 (the effective date of AD 2007-16-09) or prior to the accumulation of 3,000 total flight hours, whichever occurs later, replace the low-stage check valve and associated seals of the LH engine's engine bleed system with a new check valve and new seals, in accordance with paragraph 3.B. of the Accomplishment Instructions of EMBRAER Service Bulletin 170-36-0004, dated November 18, 2005; or Revision 01, dated March 10, 2008. As of the effective date of this AD, only use EMBRAER Service Bulletin 170-36-0004, Revision 01, dated March 10, 2008. Repeat the replacement thereafter at intervals not to exceed 3,000 flight hours.
(i) Although EMBRAER Service Bulletin 170-36-0004, dated November 18, 2005, specifies to send removed check valves to the manufacturer, this AD does not include that requirement.
New Requirements of This AD:
(j) Unless already done, do the following actions.
(1) For Model ERJ 170-200 LR, -200 STD, and -200 SU airplanes: Within 100 flight hours after the effective date of this AD, or prior to the accumulation of 3,000 total flight hours, whichever occurs later, replace the low-stage check valve and associated seals of the RH engine's engine bleed system with a new check valve and new seals, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 170-36-0004, Revision 01, dated March 10, 2008. Repeat the replacement thereafter at intervals not to exceed 3,000 flight hours.
(2) For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes: Replacing the LPCV having P/N 1001447-3 with a new one having P/N 1001447-4 in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 170-36-0011, Revision 02, dated July 19, 2007, terminates the repetitive replacements required by paragraphs (f), (h), and (j)(1) of this AD.
(3) For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes, at the earlier of the times specified in paragraphs (j)(3)(i) and (j)(3)(ii) of this AD, revise the maintenance program to include maintenance Task 36-11-02-002 (Low Stage Bleed Check Valve), specified in Section 1 of the EMBRAER 170 Maintenance Review Board Report (MRBR), MRB-1621, Revision 6, dated January 14, 2010. Thereafter, except as provided by paragraph (k) of this AD, no alternative inspection intervals may be approved for the task.
(i) Within 180 days after accomplishing paragraph (j)(2) of this AD.
(ii) Before any LPCV having P/N 1001447-4 accumulates 3,000 total flight hours, or within 300 flight hours after the effective date of this AD, whichever occurs later.
(4) For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes: As of the effective date of this AD, no person may install any LPCV identified in paragraph (j)(4)(i) or (j)(4)(ii) of this AD on any airplane.
(i) Any LPCV having P/N 1001447-3, installed on Model ERJ-170 airplanes, that has accumulated more than 3,000 total flight hours.
(ii) Any LPCV having P/N 1001447-3, installed on Model ERJ-170 and ERJ-190 airplanes, that has accumulated 3,000 or more total flight hours. To calculate the equivalent number of flight hours for a LPCV having P/N 1001447-3 that was installed on Model ERJ-190 airplane to be installed on a Model ERJ-170 airplane, the flight hours accumulated in operation on ERJ-190 models must be multiplied by a factor of 2 (100 percent).
(5) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: Within 100 flight hours after the effective date of this AD, replace all LPCVs having P/N 1001447-3 that have accumulated 1,500 total flight hours or more as of the effective date of this AD, with a new or serviceable LPCV having P/N 1001447-4 that has accumulated less than 2,000 total flight hours since new or since overhaul, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 190-36-0006, Revision 01, dated July 19, 2007.
(6) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: Replace all LPCVs having P/N 1001447-3 that have accumulated less than 1,500 total flight hours as of the effective date of this AD, before the LPCV accumulates 1,500 total flight hours or within 100 flight hours after the effective date of this AD, whichever occurs later. Replace that LPCV with a new or serviceable LPCV having P/N 1001447-4 that has accumulated less than 2,000 total flight hours since new or since overhaul, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 190-36-0006, Revision 01, dated July 19, 2007.
(7) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: Within 200 flight
(8) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: Within 200 flight hours after the effective date of this AD, or before any LPCV having P/N 1001447-4 installed on the left engine accumulates 2,000 total flight hours since new or last overhaul, whichever occurs later, replace the valve with a new or serviceable LPCV having P/N 1001447-4 that has accumulated less than 2,000 total flight hours since new or since overhaul, in accordance with the Accomplishment Instructions of EMBRAER Service Bulletin 190-36-0014, Revision 01, dated January 14, 2009. Repeat the replacement on the left engine at intervals not to exceed 2,000 total flight hours on the LPCV since new or last overhaul.
(9) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: As of the effective date of this AD, installation on the left and right engines with a LPCV having P/N 1001447-4 is allowed only if the valve has accumulated less than 2,000 total flight hours since new or last overhaul prior to installation.
(10) For Model ERJ 190-100 ECJ, -100 LR, -100 IGW, -100 STD, -200 STD, -200 LR, and -200 IGW airplanes: As of the effective date of this AD, no LPCV having P/N 1001447-3 may be installed on any airplane. Any LPCV having P/N 1001447-3 already installed on an airplane may remain in service until reaching the flight-hour limit defined in paragraphs (j)(5) and (j)(6) of this AD.
(11) Replacing the LPCV is also acceptable for compliance with the requirements of paragraph (j)(2) of this AD if done before the effective date of this AD in accordance with EMBRAER Service Bulletin 170-36-0011, dated January 9, 2007; or EMBRAER Service Bulletin 170-36-0011, Revision 01, dated May 28, 2007.
(12) Replacing the LPCV is also acceptable for compliance with the requirements of paragraphs (j)(5) and (j)(6) of this AD if done before the effective date of this AD in accordance with EMBRAER Service Bulletin 190-36-0006, dated April 9, 2007.
(13) Replacing the LPCV is also acceptable for compliance with the corresponding replacement in paragraph (j)(1) of this AD if done before the effective date of this AD in accordance with EMBRAER Service Bulletin 170-36-0004, dated November 18, 2005.
(14) Revising the maintenance program to include maintenance Task 36-11-02-002 (Low Stage Bleed Check Valve) specified in Section 1 of the EMBRAER 170 Maintenance Review Board Report (MRBR), MRB-1621, Revision 5, dated November 5, 2008, is acceptable for compliance with the requirements of paragraph (j)(3) of this AD if done before the effective date of this AD.
The actions in paragraphs (j)(5), (j)(6), (j)(7), (j)(8), (j)(9), and (j)(10) of this AD are considered interim action until a final action is identified, at which time we might consider issuing further rulemaking.
This AD differs from the MCAI and/or service information as follows: No differences.
(k) The following provisions also apply to this AD:
(1)
AMOCs approved previously in accordance with AD 2007-16-09, Amendment 39-15148, are approved as AMOCs for the corresponding provisions of paragraph (j) of this AD.
(2)
(3)
(l) Refer to MCAI Brazilian Airworthiness Directives 2005-09-03R2, effective February 25, 2008, and 2006-11-01R4, effective April 9, 2009; and the service information listed in Table 1 of this AD; for related information.
(m) You must use the service information contained in Table 2 of this AD, and the specified task in Section 1 of the EMBRAER 170 Maintenance Review Board Report (MRBR) MRB-1621, Revision 6, dated January 14, 2010, as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of the service information specified in this AD under 5 U.S.C. 552(a) and 1 CFR part 51.
EMBRAER 170 MRBR MRB-1621, Revision 6, dated January 14, 2010, contains the following effective pages:
(2) For service information identified in this AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—BRASIL; telephone +55 12 3927-5852 or +55 12 3309-0732; fax +55 12 3927-7546; e-mail
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) 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:
Several cases of corrosion and damage on the Down Drive Shafts (DDS), between the Down Drive Gear Box (DDGB) and the Input Gear Box (IPGB), on all 10 Flap Tracks (5 per wing), have been reported by AIRBUS Long Range Operators.
Investigations have revealed that corrosion and wear due to absence of grease in the spline interfaces could cause [DDS] disconnection which could result in a free movable flap surface, potentially leading to aircraft asymmetry or even flap detachment.
The unsafe condition could reduce the ability of the flightcrew to maintain the safe flight and landing of the airplane. We are issuing this AD to require actions to correct the unsafe condition on these products.
This AD becomes effective August 26, 2010.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 26, 2010.
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1138; fax (425) 227-1149.
We issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That supplemental NPRM was published in the
Airbus has issued Mandatory Service Bulletin A330-27-3152, Revision 03, including Appendices 1 and 2, dated February 22, 2010. Airbus Mandatory Service Bulletin A330-27-3152, Revision 02, dated September 23, 2008, is referred to as the appropriate source of service information for accomplishing certain actions in the supplemental NPRM. The changes in Airbus Mandatory Service Bulletin A330-27-
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Delta supports the proposed actions in the supplemental NPRM and asks that we include Airbus Mandatory Service Bulletin A330-27-3152, Revision 03, dated February 22, 2010, as the appropriate source of service information for accomplishing certain actions. Delta also asks that we give credit for Airbus Mandatory Service Bulletin A330-27-3152, Revision 02, dated September 23, 2008.
As stated previously, Airbus issued Mandatory Service Bulletin A330-27-3152, Revision 03, dated February 22, 2010. We have cited Airbus Mandatory Service Bulletin A330-27-3152, Revision 03, dated February 22, 2010, as the appropriate source of service information for accomplishing the required actions and have changed the service bulletin references in Tables 1 and 2 of this AD accordingly.
We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD.
We estimate that this AD affects about 41 products of U.S. registry. We also estimate that it takes 65 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the AD on U.S. operators to be $226,525, or $5,525 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective August 26, 2010.
(b) None.
(c) This AD applies to Airbus Model A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 series airplanes, A340-211, -212, -213, -311, -312, and -313 series airplanes, and A340-541 and -642 airplanes, certificated in any category; all certified models, all manufacturer serial numbers.
(d) Air Transport Association (ATA) of America Code 27: Flight Controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
Several cases of corrosion and damage on the Down Drive Shafts (DDS), between the Down Drive Gear Box (DDGB) and the Input Gear Box (IPGB), on all 10 Flap Tracks (5 per wing), have been reported by AIRBUS Long Range Operators.
Investigations have revealed that corrosion and wear due to absence of grease in the spline interfaces could cause [DDS] disconnection which could result in a free movable flap surface, potentially leading to aircraft asymmetry or even flap detachment.
Emergency Airworthiness Directive (EAD) 2007-0222-E mandated on all aircraft older than 6 years since AIRBUS original delivery date of the aircraft, an initial inspection of all DDS and IPGB for corrosion and wear detection in order to replace any damaged part.
Revision 1 of EAD 2007-0222-E aimed for clarifying the compliance instructions.
[EASA AD 2008-0026] supersedes the EAD 2007-0222R1-E and mandates repetitive inspections every 6 years for all the fleet.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(g) Do the applicable inspections and corrective actions specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the instructions of the applicable service information specified in Table 1 of this AD.
(1) For Model A330-200 and -300 series airplanes, up to and including manufacturer serial number (MSN) 0420, and Model A340-200 and -300 series airplanes, up to and including MSN 0415, except MSNs 0385 and 0395: Do the applicable actions specified in paragraphs (g)(1)(i), (g)(1)(ii), (g)(1)(iii), and (g)(1)(iv) of this AD at the applicable time specified.
(i) For airplanes on which less than 10 years have accumulated since the date of issuance of the original French standard airworthiness certificate or the date of issuance of the original French or EASA export certificate of airworthiness as of the effective date of this AD: Within 24 months after the effective date of this AD, perform simultaneous detailed visual inspections of the IPGB and of the DDS on all flap tracks on both wings for corrosion and wear detection and do all applicable corrective actions. For Type 3 damaged parts, do all applicable corrective actions before further flight. For Type 2 damaged IPGB parts, do all applicable corrective actions within 18 months after doing the inspection.
(ii) For airplanes on which 10 or more years have accumulated since the date of issuance of the original French standard airworthiness certificate or the date of issuance of the original French or EASA export certificate of airworthiness as of the effective date of this AD: Within 4 months after the effective date of this AD, perform simultaneous detailed visual inspections of the IPGB and of the DDS on flap tracks 2 and 4 on both wings for corrosion and wear detection. For any Type 3 damaged parts on flap tracks 2 and 4, do all applicable corrective actions before further flight. For any Type 2 damaged IPGB parts on flap tracks 2 and 4, do all applicable corrective actions within 18 months after doing the inspection required by paragraph (g)(1)(ii) of this AD.
(A) For wings on which Type 3 damage is found on the DDS of flap track 2 or 4, perform simultaneous detailed visual inspections of the IPGB and of the DDS on flap track 3 on both wings for corrosion and wear detection. For Type 3 damaged parts on flap track 3, do all applicable corrective actions before further flight. For Type 2 damaged IPGB parts, on flap track 3, do all applicable corrective actions within 18 months after doing the inspection required by paragraph (g)(1)(ii)(A) of this AD.
(
(
(B) For wings on which no Type 3 damage is found on the DDS of flap track 2 and 4: Within 18 months after doing the inspection required by paragraph (g)(1)(ii) of this AD, perform simultaneous detailed visual inspections of the IPGB and of the DDS on flap tracks 1, 3, and 5 on both wings for corrosion and wear detection. For any Type 3 damaged parts on flap tracks 1, 3, and 5, do all applicable corrective actions before further flight. For Type 2 damaged IPGB parts on flap tracks 1, 3, and 5, do all applicable corrective actions within 18 months after doing the inspection required by paragraph (g)(1)(ii) of this AD.
(iii) Within 30 days after performing an initial inspection required by paragraph (g)(1)(i) or (g)(1)(ii) of this AD, or within 30 days after the effective date of this AD, whichever occurs later, report the initial inspection results only, whatever they are, to Airbus as specified in the reporting sheet of the applicable service information listed in Table 1 of this AD.
(iv) Within 6 years after performing the applicable inspection required by paragraph (g)(1)(i) or (g)(1)(ii) of this AD, and thereafter at intervals not exceeding 6 years: Perform simultaneous detailed visual inspections of the IPGB and of the DDS on all flap tracks on both wings for corrosion and wear detection and do all applicable corrective actions. For Type 3 damaged parts, do all applicable corrective actions before further flight. For Type 2 damaged IPGB parts, do all applicable corrective actions within 18 months after doing the inspection.
(2) For airplanes other than those identified in paragraph (g)(1) of this AD: Within 6 years after issuance of the original French standard airworthiness certificate or the date of issuance of the original French or EASA export certificate of airworthiness, or within 20 months after the effective date of this AD, whichever occurs later; and thereafter at intervals not exceeding 6 years; perform simultaneous detailed visual inspections of the IPGB and of the DDS on all flap tracks on both wings for corrosion and wear detection and do all applicable corrective actions. For Type 3 damaged parts, do all applicable corrective actions before further flight. For Type 2 damaged IPGB parts, do all applicable corrective actions within 18 months after doing the inspection.
(3) Actions done before the effective date of this AD in accordance with the applicable service information specified in Table 2 of this AD are acceptable for compliance with the corresponding requirements of this AD.
Airbus should be contacted in order to get appropriate information for airplanes on which the original delivery date of the airplane is unknown to the operator.
This AD differs from the MCAI and/or service information as follows: No differences.
(h) The following provisions also apply to this AD:
(1)
(2)
(3)
(i) Refer to MCAI EASA Airworthiness Directive 2008-0026, dated February 12, 2008, and the service information specified in Table 1 of this AD, for related information.
(j) You must use the service information contained in Table 3 of this AD to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80, e-mail
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(4) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is superseding an existing airworthiness directive (AD) that applies to certain Model 767-200, -300, and -300F series airplanes. The
This AD becomes effective August 6, 2010.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of August 6, 2010.
We must receive any comments on this AD by September 7, 2010.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail
You may examine the AD docket on the Internet at
Berhane Alazar, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6577; fax (425) 917-6590.
On September 13, 2005, we issued AD 2005-19-23, amendment 39-14288 (70 FR 55519, September 22, 2005). That AD applies to certain Boeing Model 767-200, -300, and -300F series airplanes. That AD requires repetitive inspections to detect discrepancies of the eight aft-most fastener holes in the horizontal tangs of the midspar fitting of the strut, and corrective actions if necessary. That AD also requires repetitive inspections for cracks of the closeout angle that covers the two aft-most fasteners in the lower tang of the midspar fitting, and related investigative and corrective actions if necessary. That AD also provides an optional terminating action for the repetitive inspections. That AD resulted from a report of a crack in a closeout angle that covers the two aft-most fasteners in the lower tang of the midspar fitting, and the discovery of a crack in the lower tang of the midspar fitting under the cracked closeout angle. The actions specified in that AD are intended to prevent fatigue cracking in the primary strut structure and reduced structural integrity of the strut, which could result in separation of the strut and engine.
Since we issued that AD, we received two reports of cracks in the midspar fitting tangs. The first report indicated severed upper and lower tangs at the aft two fastener locations in the Number 1 pylon inboard midspar fitting. The cracks were found during a routine check of a Model 767-300 airplane at approximately 92,205 total flight hours and 14,969 total flight cycles. This airplane had incurred 408 flight cycles from the previous inspection. The second report indicated cracks in the Number 1 pylon inboard midspar fitting lower tang, between the aft two fastener holes, on a Model 767-300 airplane at approximately 94,176 total flight hours and 15,405 total flight cycles. This airplane had incurred 830 cycles from the previous inspection.
AD 2005-19-23 specified repetitive inspection intervals between 1,500 flight cycles and 16,000 flight cycles, depending on the inspection type and location. We have determined that the affected airplanes must be inspected within 400 flight cycles since the previous inspection and, for those airplanes that have not yet been inspected, the compliance time threshold of 10,000 total flight cycles specified in AD 2005-19-23 must be reduced to 8,000 total flight cycles. We have also determined that repetitive inspection intervals must be reduced to 400 flight cycles and 6,000 flight cycles, depending on the inspection type.
We have reviewed Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010. We referred to Boeing Alert Service Bulletin 767-54A0101, Revision 4, dated February 10, 2005, for doing certain actions required by AD 2005-19-23. The procedures in Revision 5 are similar to the procedures in Revision 4. Revision 5 reduces the compliance times for doing the procedures.
We have also reviewed Boeing Alert Service Bulletin 767-54A0062, Revision 6, dated November 5, 2009; and Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008; which are the latest versions of certain service bulletins referred to in AD 2005-19-23 as additional sources of guidance for doing the terminating action. Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, refers to Boeing Alert Service Bulletin 767-54A0062, Revision 6, dated November 5, 2009; and Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008; as additional sources of guidance for doing the terminating action in Part 4 of the alert service bulletin.
The FAA has issued the following ADs that are related to the additional sources of guidance specified in this AD.
The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to supersede AD 2005-19-23. This AD requires accomplishing the actions specified in Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, described previously, except as discussed under “Differences Between the AD and the Service Bulletin.”
The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this AD requires repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
Steps 4.a. and 4.b. of Part 2 of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, specify actions if cracking is found and the hole size is either greater than 0.5322 inch or less than 0.5322 inch but not if the hole size equals 0.5322 inch. This AD specifies that if cracking is found and the hole size equals 0.5322 inch, then the terminating action specified in step 4.a. of Part 2 of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, must be accomplished.
We consider this AD interim action. We are currently considering additional rulemaking to expand the inspection area.
Fatigue cracking in the primary strut structure could result in reduced structural integrity of the strut and consequent separation of the strut and engine. Because of our requirement to promote safe flight of civil aircraft and thus, the critical need to ensure the structural integrity of the pylon structure and midspar fittings and the short compliance time involved with this action, this AD must be issued immediately.
Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII,
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.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective August 6, 2010.
(b) This AD supersedes AD 2005-19-23, Amendment 39-14288.
(c) This AD applies to The Boeing Company Model 767-200, -300, and -300F series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010.
(d) Air Transport Association (ATA) of America Code 54: Nacelles/Pylons.
(e) This AD results from reports of cracks in the midspar fitting tangs. The Federal Aviation Administration is issuing this AD to detect and correct fatigue cracking in the primary strut structure and reduced structural integrity of the strut, which could result in separation of the strut and engine.
(f) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Notwithstanding any inspection done in accordance with AD 2005-19-23, inspect within the compliance times specified in this AD.
(g) At the applicable time specified in paragraph (h) of this AD: Do the actions specified in either paragraph (g)(1) or (g)(2) of this AD.
(1) Do a detailed inspection for cracking of the 8 aft-most fastener holes in the horizontal tangs of the midspar fitting of the strut, and a surface high frequency eddy current (HFEC) inspection for cracking of the closeout angle that covers the 2 aft-most fasteners in the lower tang of the midspar fitting, in accordance with Part 1, “Detailed Inspection of Midspar Fitting and Surface High Frequency Eddy Current (HFEC) Inspection of Closeout Angle,” of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010.
(2) Do an open-hole HFEC inspection for cracking of each fastener hole, inspect to determine the size of each fastener hole, and do all applicable related investigative and corrective actions, in accordance with Part 2, “Open Hole HFEC Inspection,” of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, except as required by paragraphs (m) and (n) of this AD, and except as provided by paragraph (p) of this AD. Do all applicable related investigative and corrective actions before further flight.
(h) At the applicable time specified in paragraph (h)(1) or (h)(2) of this AD, do the actions specified in paragraph (g) of this AD.
(1) For airplanes on which an inspection (any Part 1 or Part 2 inspection) has not been done in accordance with any service bulletin listed in Table 1 of this AD as of the effective date of this AD: Prior to the accumulation of 8,000 total flight cycles, or within 90 days after the effective date of this AD, whichever occurs later, do the actions specified in paragraph (g) of this AD.
(2) For airplanes on which any inspection (any Part 1 or Part 2 inspection) has been done in accordance with any service bulletin listed in Table 1 of this AD as of the effective date of this AD: Within 400 flight cycles after doing the most recent inspection or within 90 days after the effective date of this AD, whichever occurs later, do the actions specified in paragraph (g) of this AD.
(i) If, during any detailed and surface HFEC inspection specified by paragraph (g)(1) of this AD, no cracking is found, do the actions specified in either paragraph (i)(1) or (i)(2) of this AD.
(1) Repeat the inspections specified in paragraph (g)(1) of this AD thereafter at intervals not to exceed 400 flight cycles.
(2) Within 400 flight cycles after doing the most recent inspections specified in paragraph (g)(1) of this AD, do the actions specified in paragraph (g)(2) of this AD and repeat thereafter at intervals not to exceed 6,000 flight cycles.
(j) If, during the actions specified by paragraph (g)(2) of this AD, the terminating action specified in Part 4 of the Work Instructions of Boeing Alert Service Bulletin
(1) Within 6,000 flight cycles after doing the actions specified in paragraph (g)(2) of this AD, do the inspections specified in paragraph (g)(1) of this AD and repeat the inspections thereafter at intervals not to exceed 400 flight cycles.
(2) Repeat the actions specified in paragraph (g)(2) of this AD thereafter at intervals not to exceed 6,000 flight cycles.
(k) If, during any inspection specified by paragraph (g)(1) of this AD, any crack is found in the midspar fitting tangs, before further flight, do the actions specified in paragraph (k)(1) or (k)(2) of this AD.
(1) Do the terminating action specified in Part 4 of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, except as required by paragraph (m) of this AD. Accomplishment of this paragraph terminates the requirements of this AD.
(2) Replace the midspar fitting of the strut with a new part, or repair in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Within 8,000 flight cycles after doing the replacement, do the actions specified in either paragraph (k)(2)(i) or (k)(2)(ii) of this AD.
(i) Do the inspections specified in paragraph (g)(1) of this AD and repeat the inspections thereafter at intervals not to exceed 400 flight cycles.
(ii) Do the actions specified in paragraph (g)(2) of this AD and repeat the actions thereafter at intervals not to exceed 6,000 flight cycles.
(l) If, during any surface HFEC inspection specified by paragraph (g)(1) of this AD, any crack is found in the closeout angle, before further flight, do the open-hole HFEC inspection for cracking and all applicable related investigative and corrective actions, in accordance with Part 2, “Open Hole HFEC Inspection,” and step 4.b.(2) of Part 1, “Detailed Inspection of Midspar Fitting and Surface High Frequency Eddy Current (HFEC) Inspection of Closeout Angle,” of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, except as required by paragraphs (m) and (n) of this AD, and except as provided by paragraph (p) of this AD. If the terminating action specified in Part 4 of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, is not done, do the actions specified in either paragraph (l)(1) or (l)(2) of this AD.
(1) Within 6,000 flight cycles after doing the actions specified in paragraph (l) of this AD, do the inspections specified in paragraph (g)(1) of this AD and repeat the inspections thereafter at intervals not to exceed 400 flight cycles.
(2) Within 6,000 flight cycles after doing the actions specified in paragraph (l) of this AD, do the actions specified in paragraph (g)(2) of this AD, and repeat the actions thereafter at intervals not to exceed 6,000 flight cycles.
(m) Where Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, specifies that the manufacturer may be contacted for disposition of repair conditions: Before further flight, accomplish the repair using a method approved in accordance with the procedures specified in paragraph (r) of this AD.
(n) If, during any open-hole HFEC inspection required by paragraph (g)(2) or (l) of this AD, any crack is found in the midspar fitting and the hole size is 0.5322 inch, before further flight, do the terminating action specified in paragraph (k)(1) of this AD.
(o) Doing the terminating action specified in Part 4 of the Work Instructions of Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, terminates the requirements of this AD.
Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, refers to the Boeing service bulletins in Table 2 of this AD as additional sources of guidance for doing the terminating action in paragraphs (k) and (o) of this AD.
Certain service bulletins referenced in Table 2 of this AD are related to the ADs listed in Table 3 of this AD.
(p) In lieu of doing the related investigative and corrective actions required by paragraph (g)(2) or (l) of this AD, before further flight, replace the midspar fitting of the strut with a new part, or repair in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. Within 8,000 flight cycles after doing any replacement, do the actions specified in either paragraph (p)(1) or (p)(2) of this AD.
(1) Do the inspections specified in paragraph (g)(1) of this AD and repeat the inspections thereafter at intervals not to exceed 400 flight cycles.
(2) Do the actions specified in paragraph (g)(2) of this AD and repeat the actions thereafter at intervals not to exceed 6,000 flight cycles.
(q) Doing the terminating action specified in Part 4 of the Work Instructions of any service bulletin listed in Table 4 of this AD before the effective date of this AD is acceptable for compliance with the requirements of this AD.
(r)(1) The Manager, Seattle Aircraft Certification 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
(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 principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(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 the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that 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.
(s) You must use Boeing Alert Service Bulletin 767-54A0101, Revision 5, dated June 29, 2010, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail me.
(3) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.
(4) You may also review copies of the service information that is incorporated by reference 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 action modifies Restricted Area R-3404 at Crane, IN, in support of U.S. Navy ordnance demolition activities. The FAA is taking this action to protect nonparticipating aircraft from blast fragments generated during the demilitarization and disposal of a variety of types of unexpended ordnance at the Naval Support Activity (NSA) Crane's Demolition Range.
Effective date 0901 UTC, September 23, 2010.
Colby Abbott, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
On Tuesday, October 23, 2007, the FAA published in the
Five commenters stated the proposal would impact users due to the ceiling of R-3404 being raised from 2,500 feet mean sea level (MSL) to 4,100 feet MSL along a major flyway between Evansville, IN, and Indianapolis, IN, when icing conditions force aircraft to lower altitudes. The FAA does not agree. The existing restricted area airspace is
All six commenters expressed concern over the proposed expansion of R-3404, laterally and vertically, impacting the access to Federal Airway V-305 below 5,000 feet MSL. The FAA partially agrees. Although the proposed restricted area lies to the west of V-305 and does not interfere with the centerline of the airway, IFR aircraft flying on V-305 at 3,000 feet MSL and 4,000 feet MSL would be impacted when the proposed R-3404 is active. However, as mentioned previously, these aircraft could easily be vectored by air traffic control to remain clear of the proposed restricted area with minimal impact. With the 8 NM airway width of V-305, VFR aircraft following the Federal airway would not be required to leave the lateral confines of the airway to avoid the proposed expansion of R-3404. As mentioned above, they could easily circumnavigate the 2 NM diameter of the expanded restricted area to the east and still be following V-305. As a result, realignment of V-305 is also determined to be unnecessary.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by modifying R-3404 near Crane, IN. The modification centers the restricted area over NSA Crane's blast area (lat. 38°49′30″ N., long. 86°50′08″ W.), enlarges the restricted area from a
Section 73.34 of Title 14 CFR part 73 was republished in FAA Order 7400.8S, effective February 16, 2010.
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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies R-3404, Crane, IN., for the protection of nonparticipating aircraft during the disposal of a variety of types of ordnance.
Pursuant to Section 102(2) of the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR Parts 1500-1508), and other applicable law, the U.S. Navy prepared and published a Final Environmental Assessment (FEA) in June 2008 that analyzed the potential for environmental impacts associated with the proposed NSA Crane and Naval Surface Warfare Center (NSWC) Glendora Lake Test Facility requirements. In July 2009, the U.S. Navy issued a Finding of No Significant Impact (FONSI) based on the results of the FEA. In accordance with applicable CEQ regulations (40 CFR 1501.6) and the Memorandum of Understanding (MOU) between FAA and Department of
The FAA has conducted an independent review of the FEA and is adopting the FEA for this action pursuant to 40 CFR 1506.3(a) and (c) and has issued an Adoption of FEA and FONSI/Record of Decision (ROD) dated May 2010. This final rule, which increases the vertical limit and lateral boundary of R-3404, will not result in significant environmental impacts. A copy of the FAA Adoption of FEA and FONSI/ROD has been placed in the public docket for this rulemaking.
Airspace, Prohibited areas, Restricted areas.
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Boundaries. That airspace within a 1 NM radius of lat. 38°49′30″ N., long. 86°50′08″ W.
Designated altitudes. Surface to and including 4,100 feet MSL.
Time of designation. Sunrise to sunset, daily from May 1 through and including November 1. Other times by NOTAM 24 hours in advance.
Controlling agency. FAA, Terre Haute ATCT.
Using agency. U.S. Navy, Crane Division, Naval Surface Warfare Center tenant of NSA Crane.
Office of the Secretary (OST), Department of Transportation (DOT).
Direct final rule; confirmation of effective date
This document confirms the effective date of the direct final rule amending the time period for uploading flight performance information to a reporting air carrier's Web site from anytime between the 20th and 23rd day of the month to the fourth Saturday of the month.
This final rule is effective on July 21, 2010.
Blane A. Workie, Deputy Assistant General Counsel, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax),
The Department of Transportation's Office of the Secretary (OST) published a direct final rule with a request for comments in the
Securities and Exchange Commission.
Final rule; technical amendment.
The Securities and Exchange Commission (“Commission”) is making technical amendments to the rule by which authority is delegated to the Director of the Division of Enforcement. The amendments update references to the provision in the Securities Act of 1933 (“Securities Act”) which authorizes the Commission to issue subpoenas in investigations under the Securities Act, and delete references to the Public Utility Holding Company Act of 1935 (“PUHCA”).
Effective Date: July 22, 2010.
Kenneth H. Hall, Assistant Chief Counsel, 202-551-4936, Office of Chief Counsel, Division of Enforcement, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6553.
The Commission is authorized to conduct investigations of possible violations of the Securities Act. Specifically, section 19(c) of the Securities Act
For the purpose of any investigations which, in the opinion of the Commission, are necessary and proper for the enforcement of this title, any member of the Commission or any officer or officers designated by it are empowered to administer oaths and affirmations, subpena [sic] witnesses, take evidence, and require the production of any books, papers, or other documents which the Commission deems relevant or material to the inquiry. Such attendance of witnesses and the production of such documentary evidence may be required from any place in the United States or any Territory at any designated place of hearing.
PUHCA was repealed by the Energy Policy Act of 2005.
Under the Administrative Procedure Act (“APA”), notice of proposed rulemaking is not required when an agency, for good cause, finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.”
Section 23(a)(2) of the Exchange Act requires the Commission, in adopting rules under the Exchange Act, to consider the competitive effects of such rules.
We are adopting these technical amendments under the authority set forth in section 23(a) of the Exchange Act.
Rules of organization, Conduct and ethics, and Information and requests.
15 U.S.C. 77o, 77s, 77sss, 78d, 78d-1, 78d-2, 78w, 78
(a)(1) To designate officers empowered to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, contracts, agreements, or other records in the course of investigations instituted by the Commission pursuant to section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)).
(3) To terminate and close all investigations authorized by the Commission pursuant to section 20 of the Securities Act of 1933 (15 U.S.C. 77t), section 21 of the Securities Exchange Act of 1934 (15 U.S.C. 78u), section 42 of the Investment Company Act of 1940 (15 U.S.C. 80a-41) and section 209 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9).
(4) To terminate the authority to administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, contracts, agreements, or other records in the course of investigations instituted by the Commission pursuant to section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)).
(10) To institute subpoena enforcement proceedings in federal court to seek an order compelling the production of documents or an individual's appearance for testimony pursuant to subpoenas issued pursuant to paragraph (a)(1) of this section in connection with investigations pursuant to section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)).
(11) To authorize staff to appear in federal bankruptcy court to preserve Commission claims in connection with investigations pursuant to section 19(c) of the Securities Act of 1933 (15 U.S.C. 77s(c)), section 21(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(b)), section 42(b) of the Investment Company Act of 1940 (15 U.S.C. 80a-41(b)) and section 209(b) of the Investment Advisers Act of 1940 (15 U.S.C. 80b-9(b)).
(13) For the period from August 11, 2009 through August 11, 2010, to order
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
This Treasury decision establishes the 9.7-square mile “Sierra Pelona Valley” American viticultural area in southern 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.
Christina McMahon, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Room 200-E, Washington, DC 20220; phone 202-453-2256.
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 proposing the establishment of the Sierra Pelona Valley viticultural area on behalf of local grape growers. The proposed viticultural area covers 9.7 square miles and contains 96 acres of commercial vineyards. The proposed viticultural area lies 30 miles north of the City of Los Angeles, 35 miles east of the Pacific Ocean, and 20 miles southwest of the Mojave Desert. TTB notes that the proposed viticultural area is not within any established American viticultural area, and that the boundary line of the proposed viticultural area neither overlaps nor runs along any other proposed or established viticultural area boundary line. The evidence submitted in support of the petition is summarized below.
The USGS Sleepy Valley and Agua Dulce maps identify the Sierra Pelona Valley as a landform within Los Angeles County. The USGS Ritter Ridge, Sleepy Valley, and Agua Dulce maps identify Sierra Pelona as a mountain range to the immediate north of the proposed Sierra Pelona Valley viticultural area.
According to the petition, the Sierra Pelona Valley is located north of California State Highway 14, between the towns of Santa Clarita and Palmdale (Los Angeles Region map, California Regional Series, Automobile Club of Southern California, 2006 edition). The proposed viticultural area, including the expansive Sierra Pelona Valley region, is adjacent to the southern foothills of the Sierra Pelona range (DeLorme Southern and Central California Atlas and Gazetteer, Seventh Edition, 2005, page 79).
The petition explains that the large Sierra Pelona Valley region, oriented northeast-to-southwest, comprises Hauser Canyon, upper Agua Dulce Canyon, and Mint Canyon, including Sleepy Valley. The petition states that in local usage “Sierra Pelona” applies to the expansive valley, as well as the mountain range to the immediate north of the valley. The Sierra Pelona Valley is the name that best describes the proposed viticultural area, according to the petitioner.
The petition provides historical, physiographical, and geographical data to define the boundary of the proposed viticultural area.
Viticulture in the proposed Sierra Pelona Valley viticultural area started in 1995, according to the petition. By 2008, the region had 96 acres of commercial vineyards.
The petition states that the boundary encompasses the alluvial valley fill and the gently sloping foothills just to the steep inclines. The foothills extend outward for as much as 1 mile.
The geology of the proposed viticultural area includes mostly consolidated alluvium between 23 and 37 million years old, but also includes some more recent alluvium, between 1.5 and 2 million years old, according to the petition. Further uniformity in the area is provided by a granitic intrusion, ranging from 195 to 225 million years old, that spans the Sierra Pelona Valley. In contrast to the valley alluvium and the granitic intrusion, the surrounding mountains, ranging from 195 million to 4.5 billion years old, consist mainly of very different rocks.
The petition states that elevations of the proposed viticultural area vary from 2,400 to 3,400 feet. Those of the mountains to the west and of the mountain ridges to the north, east, and south vary from 3,401 to 5,187 feet. Elevations of a canyon in the Santa Clarita area, about 5 miles southwest of the proposed boundary line, drop to approximately 1,600 feet.
The petition asserts that the distinguishing features of the proposed Sierra Pelona Valley viticultural area include climate, geology, soils, topography, and elevation. The inland location of the Sierra Pelona Valley both influences its distinguishing features and contributes to the success of its viticulture.
The petition, citing
To contrast the climate in the proposed viticultural area with that in the surrounding areas, the petition gives climate data for several locations outside the proposed area (“Soil Survey of Antelope County, California”). Sandberg is at an elevation of 4,517 feet in the high mountains northwest of the proposed viticultural area, and although it has a total annual average precipitation of 12.1 inches, about the same as the upper-end precipitation in the proposed viticultural area, Sandberg has average daily growing season maximum and minimum temperatures of 77 and 54 degrees F. San Fernando, at an elevation of 977 feet in a low-lying area to the southwest of the proposed viticultural area, has a total average monthly precipitation of 16.9 inches and average daily growing season maximum and minimum temperatures of 85 and 52 degrees F. Palmdale, at an elevation of 2,665 feet in the desert due east of the proposed viticultural area, has a total average monthly precipitation of 8.9 inches and average daily growing season maximum and minimum temperatures of 87 and 55 degrees F.
Air drainage from surrounding higher elevations to the Sierra Pelona Valley floor, the petition explains, reduces the hazard of frost damage in spring. In addition, air movement across the slopes reduces the threat of leaf fungus and the need for heavy spraying of pesticides. Wind direction, according to Don McAdam, a valley resident, is frequently shifted and redirected by hills, knolls, and valleys.
The petition states that the climate of the mountainous surrounding areas does not support viticulture due to an excessively short growing season, cooler summers, and vine-killing, cold winters.
The petition states that the “Geological Map of California” (Department of Conservation, Division of Mines and Geology, compilation of Charles W. Jennings, 1977) shows that deposits of alluvium, mostly nonmarine and unconsolidated, cover most of the Sierra Pelona Valley floor. The petition further states that deposits of semiconsolidated Quaternary nonmarine alluvium cover the rest of the valley. The deposits of alluvium in the Sierra Pelona Valley have a sedimentary geology; that is, they are both sand and gravel in origin. They contrast sharply with the rocks in the areas surrounding the Sierra Pelona Valley.
The petition notes that soils on alluvial fans and terraces, like those in the proposed Sierra Pelona Valley viticultural area, are renowned throughout the world for winegrape growing (“Viticulture and the Environment,” by John Gladstones, Winetitles, 1992).
The petition states that the alluvium that dominates the valley floor of the proposed viticultural area is significantly younger than the rocks in the surrounding regions. According to the petition, the alluvium dates from the Tertiary and Quaternary Periods of the Cenozoic Era, 37 million years old to present (“McGraw-Hill Concise Encyclopedia of Earth Science,” 2005, and the “Geological Map of California”). The rocks on mountains to the north of the proposed viticultural area include Permian or Triassic Period schist, 195 to 280 million years old, and some Precambrian rocks, 570 million to 4.5 billion years old. The mountains to the south include Precambrian conglomerate, shale, gneiss, and sandstone.
According to the petition, the Sierra Pelona Valley is on a formation of Mesozoic granitic and metamorphic rocks, mostly gneiss and other metamorphic rocks with granitic intrusions. The petition notes that these mineral-rich rocks are particularly well suited to producing several varieties of wine, especially Syrah. To the north of the proposed viticultural area, the rocks consist of varying metasedimentary schist types of Precambrian age, but mostly of Paleozoic or Mesozoic age. A minor fault line lying along the north edge of the Sierra Pelona Valley is at the contact line between the alluvium in the Sierra Pelona Valley on the south side of the fault and the schist on the north, upland side of the fault. The south side of the fault is subsiding in places.
To the south of the proposed viticultural area, the dominant rocks are marine sedimentary and metasedimentary conglomerate, shale, sandstone, limestone, dolomite, marble, gneiss, hornfelds, and quartzitet. To the south and east, in the Vasquez Rocks County Park of Los Angeles County, basaltic rocks are on a major portion of the lower Vasquez Formation. The basaltic rocks separate the alluvium of the proposed viticultural area from the surrounding regions to the south.
According to the petition, climate, especially rainfall and heat, influences soils through the growth of plant types, the decomposition rate of organic matter, and the weathering of minerals (“Soil Survey of the Antelope Valley Area, California”). Rainfall in the proposed viticultural area makes it a transitional zone between desert and forest.
The soils on the valley floor in the proposed viticultural area have significant differences compared to those on the surrounding mountains. On
The slope-wash soils on the foot slopes are poor, and have rock fragments on the surface in many areas. However, these rock fragments diffuse and reflect sunlight to lower leaves shaded by canopy, help keep the soil warm, and increase soil moisture, all of which benefits viticulture (“Terroir, The Role of Geology, Climate, and Culture in the Making of French Wines,” by James E. Wilson, University of California Press, 1998).
And although the poor soils reduce the growth rate of the vines, the wines made from the grapes of those vines have more natural balance, according to the petition. The petition explains further that the soils of the area benefit the classic grape varieties, which generally produce well only in poor sandy soils (“Terroir, The Role of Geology, Climate, and Culture in the Making of French Wines”). The reduced vine growth rate decreases the need for summer pruning, irrigation, and use of farm equipment. On the other hand, these soils have multidirectional sun exposures, which allow for the planting of a variety of grapes.
In the proposed viticultural area soil depth is 60 inches or more. The petition states that soil depth is important for vine growth because most vine roots grow to a depth of 39 inches (“The University Wine Course: A Wine Appreciation Text & Self Tutorial,” by Marianne W. Baldy, The Wine Appreciation Guild, 1998). Such deep roots are important because vines can extract 1 or 2 inches of moisture for each foot of rooting depth.
In contrast, the soils on the surrounding mountains are shallow, excessively drained, and infertile. They are dominantly on steep slopes, and are subject to erosion. These soils are suited to recreation, range, and wildlife, and to use as a watershed.
The petition explains that the large Sierra Pelona Valley region, oriented northeast-to-southwest, comprises Hauser Canyon, upper Agua Dulce Canyon, and Mint Canyon, including Sleepy Valley. The USGS Agua Dulce and Sleepy Valley maps show that the long, narrow, gentle side slopes of the Sierra Pelona Valley are surrounded by projecting mountain ridges to the north, east, and south and by a mountain and a chord of radiating canyons to the west. The petition states that the valley floor itself has many isolated knolls but that most of the valley is on gentle slopes suited to viticulture.
The USGS Agua Dulce and Sleepy Valley maps also show that intermittent tributaries in the Sierra Pelona Valley flow into Agua Dulce Canyon and create a single, south-flowing stream that eventually joins the Santa Clara River. The petition explains that the alluvium derived from rocks at higher elevations is carried downstream by these tributaries. This pattern of alluvium deposition contributes to the unique mix of mineral and chemical soil properties in the proposed viticultural area.
The petition states that fine quality winegrapes are universally associated with soils on midslopes where outwash accumulates and deeper soils form (“Terroir, The Role of Geology, Climate, and Culture in the Making of French Wines”). These midslopes, the petition notes, are sometimes called viticulture “bellies,” because they hold the sediment washed from the weathered rocks above and create vineyards. In most of the proposed viticultural area, winegrapes are grown on gentle midslopes.
The petition states that the proposed viticultural area has other features besides gentle slopes favorable for viticulture. Good water and air drainage and soils with low fertility and a high mineral content produce grapevines with reduced vigor but with more natural balance.
According to the USGS maps of the region and the petition, elevations in the proposed viticultural area vary from 2,400 to 3,400 feet. Elevations also gradually decline approximately 1,000 feet over the 5 miles from the east side to the west side of the proposed boundary line. At the town of Agua Dulce and the Agua Dulce Air Park in the Sierra Pelona Valley floor, elevations range from 2,500 to 2,600 feet.
The petition states that elevations outside of the proposed viticultural area are generally higher than those in the valley. Some close-in peaks in the Sierra Pelona Range are 5,187-foot Mount McDill to the north, and west of Mount McDill, a 4,973-foot promontory at Bear Springs and a 4,859-foot peak at Willow Springs. According to the petition and the USGS Sleepy Valley map, southeast of Sierra Pelona Valley, Windy Mountain stands at 3,785 feet and two unnamed peaks reach elevations of 3,791 and 3,706 feet, all within
TTB published Notice No. 97 regarding the proposed Sierra Pelona Valley viticultural area in the
In response to that notice, we received 17 comments, and 16 of those comments were clearly in support of establishing the proposed viticultural area. Several comments expressed the belief that the Sierra Pelona Valley is a unique grape growing area with a climate that is distinctive from neighboring areas. We also received comments stating that the establishment of the Sierra Pelona Valley viticultural area will have a positive effect on the local and State economy.
One commenter did not express any direct opposition to the establishment of the proposed viticultural area, but was strongly in favor of making the Antelope Valley part of the Sierra Pelona Valley AVA region. TTB notes, however, that the commenter did not submit any evidence to establish that the name “Sierra Pelona Valley” is known as referring to this additional area or any data concerning geographical features in support of this request. TTB further notes that two commenters specifically asserted that the conditions in Antelope Valley are different from those in the Sierra Pelona region. The owner of Antelope Valley Winery stated that unique conditions in the Sierra Pelona Valley lead to the creation of wines that are different from the Santa Clarita area as well as the Antelope Valley area. The President of the Antelope Valley Winegrowers Association commented that the soil and temperature conditions in the Sierra Pelona Valley differ from Antelope Valley, and that grapes in the Sierra Pelona region have a longer hang time and later harvest date than grapes in Antelope Valley.
After careful review of the petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Accordingly, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Sierra Pelona 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, “Sierra Pelona 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.
In addition we believe that “Sierra Pelona” standing alone also is a term of viticultural significance because consumers and vintners could reasonably attribute the quality, reputation, or other characteristic of wine made from grapes grown in the proposed “Sierra Pelona Valley” viticultural area to the name “Sierra Pelona.”
Once this final rule becomes effective, wine bottlers using “Sierra Pelona Valley” or “Sierra Pelona” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use “Sierra Pelona Valley” as an appellation of origin.
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 identified as being viticulturally significant 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 for labeling with the viticultural area name or other viticulturally significant term and that name or 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 viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Sierra Pelona Valley” or “Sierra Pelona” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation upon the effective date of the establishment of the Sierra Pelona Valley viticultural area.
Different rules apply if a wine has a brand name containing a viticultural area name or other viticulturally significant term that was used as a brand name on a label approved before July 7, 1986.
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. Therefore, it requires no regulatory assessment.
Christina McMahon of the Regulations and Rulings Division drafted this notice.
Wine.
27 U.S.C. 205.
(a)
(b)
(1) Agua Dulce, CA, 1995;
(2) Sleepy Valley, CA, 1995; and
(3) Ritter Ridge, Calif., 1958, Photorevised 1974.
(c)
(1) The beginning point is on the Agua Dulce map at the intersection of the section 26 east boundary line, the pipeline, and Escondido Canyon Road, a secondary highway, T5N, R14W. From the beginning point, proceed in a straight line south 0.3 mile to the line's intersection with the northeast corner of the Vasquez Rocks County Park, T5N, R14W; then
(2) Proceed southwest through section 26 along the straight lines and 90-degree turns of the county park boundary line to the line's intersection with the southeast corner of section 27, T5N, R14W; then
(3) Proceed southwest in a straight line 0.4 mile to the line's intersection with BM 2258, section 34, T5N, R14W; then
(4) Proceed west-northwest in a straight line 0.15 mile, crossing over the Agua Dulce Road, to the line's intersection with the 2,400-foot elevation line and an unimproved dirt road, section 34, T5N, R14W; then
(5) Proceed generally west along the meandering 2,400-foot elevation line to the line's intersection with the section 34 west boundary line, T5N, R14W; then
(6) Proceed north along the section 34 west boundary line 1 mile to the line's intersection with the 2,800-foot elevation line and the section 27 west boundary line; then
(7) Proceed along the 2,800-foot elevation line first generally northeast, then northwest around Saddleback Mountain, and then north across a trail and an unimproved dirt road, to the line's intersection with the section 21 south boundary line, T5N, R14W; then
(8) Proceed straight east along the section 21 south boundary line 0.25 mile to the southeast corner of section 21, T5N, R14W; then
(9) Proceed north along the section 21 south boundary line onto the Sleepy Valley map 0.6 mile to the line's intersection with the 2,800-foot elevation line and the section 22 west boundary line, T5N, R14W; then
(10) Proceed along the 2,800-foot elevation line generally northeast around the 3,166-foot and 3,036-foot pinnacles, then continue southwest to the line's intersection with the section 22 north boundary line, T5N, R14W; then
(11) Proceed west along the section 22 north boundary line 0.2 mile to the line's intersection with the 2,600-foot elevation line, T5N, R14W; then
(12) Proceed generally west-southwest along the 2,600-foot elevation line to the line's intersection with the section 21 west boundary line, T5N, R14W; then
(13) Proceed north along the section 21 west boundary line 0.2 mile to the line's intersection with the 2,400-foot elevation line and the section 20 east boundary line, T5N, R14W; then
(14) Proceed generally southwest along the 2,400-foot elevation line to the line's intersection with an unimproved dirt road in section 20, T5N, R14W; then
(15) Proceed northwest along the unimproved dirt road 0.15 mile to its intersection with the Sierra Highway, a secondary highway, section 20, T5N, R14W; then
(16) Proceed southwest along the Sierra Highway 0.15 mile to its intersection with an unnamed stream, section 20, T5N, R14W; then
(17) Proceed in a straight line north-northwest approximately 0.3 mile to the line's intersection with the Angeles National Forest boundary line, an unnamed stream running through Rowher Canyon, and the section 17 south boundary line, T5N, R14W; then
(18) Proceed straight east, north, and east, making 90-degree turns, along the Angeles National Forest boundary line to the line's intersection with the section 7 southwest corner, T5N, R13W; then
(19) Proceed straight north along the Angeles National Forest boundary line and the section 7 west boundary line 0.5 mile to the line's intersection with the 3,400-foot elevation line, T5N, R13W; then
(20) Proceed along the 3,400-foot elevation line generally east, north, then west to the line's intersection with the section 6 west boundary line, T5N, R13W; then
(21) Proceed north along the section 6 west boundary line 0.4 mile to the line's intersection with the 3,400-foot elevation line, T5N, R13W; then
(22) Proceed generally southeast along the 3,400-foot elevation line, crossing over Latteau, Willow Springs, and Hauser Canyons and continuing onto the Ritter Ridge map, to the line's intersection with an unimproved dirt road at Summit, section 16, T5N, R13W; then
(23) Proceed south along the unnamed dirt road less than 0.1 mile, crossing the Sierra Highway, to its intersection with the 3,400-foot elevation line, section 16, T5N, R13W; then
(24) Proceed generally southwest along the 3,400-foot elevation line, meandering between the Sleepy Valley and Ritter Ridge maps and then returning to the Sleepy Valley map, to the line's intersection with the section 20 north boundary line, T5N, R13W; then
(25) Proceed in a straight line west along the section 20 north boundary line 0.2 mile to the line's intersection with the 3,200-foot elevation line, section 20, T5N, R13W; then
(26) Proceed generally southwest along the 3,200-foot elevation line to the line's intersection with the section 19 west boundary line, T5N, R13W; then
(27) Proceed in a straight line north along the section 19 west boundary line 0.15 mile to the line's intersection with a pipeline, T5N, R13W; and then
(28) Proceed southwest onto the Agua Dulce map 1.25 miles along the pipeline, returning to the beginning point.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau is adopting as a final rule, with minor technical changes, temporary regulations that implemented certain provisions of the Children's Health Insurance Program Reauthorization Act of 2009 (the Act). The regulatory amendments involved increases in the Federal excise tax rates on tobacco products and cigarette papers and tubes, the floor stocks tax provisions of the Act, and the new statutory criteria for denial, suspension, or revocation of tobacco permits.
For questions concerning floor stocks tax, contact the National Revenue Center, Alcohol and Tobacco Tax and Trade Bureau (
Chapter 52 of the Internal Revenue Code of 1986 (IRC) contains permit, Federal excise tax payment, and related provisions regarding tobacco products and cigarette papers and tubes. The Alcohol and Tobacco Tax and Trade Bureau (TTB) has authority to issue, deny, suspend, and revoke permits of manufacturers, importers, and export warehouse proprietors pursuant to regulations contained in parts 40, 41, 44, and 71 of title 27 of the Code of Federal Regulations (CFR). TTB also collects Federal excise taxes on tobacco products and cigarette papers and tubes
The Children's Health Insurance Program Reauthorization Act of 2009, (the Act), Public Law 111-3, was enacted on February 4, 2009. Section 701 of the Act increased the rates of Federal excise tax on tobacco products and cigarette papers and tubes removed from the factory or from internal revenue bond or from customs custody on or after April 1, 2009.
Section 701 of the Act also imposed a floor stocks tax on taxpaid or tax determined tobacco products (other than large cigars described in 26 U.S.C. 5701(a)(2)), and on cigarette papers and tubes, held for sale on April 1, 2009. The floor stocks tax rate is equal to the difference between the new Federal excise tax rate and the immediately prior rate. Persons likely to be holding articles for sale that are subject to the floor stocks tax include manufacturers, importers, and wholesale and retail dealers of these articles. The floor stocks tax provisions of section 701 also permit a credit against the floor stocks tax of $500 or the amount of tax due, whichever is less, and also contain rules for handling articles in foreign trade zones and for controlled groups.
Section 702(b) of the Act amended 26 U.S.C. 5712 and 5713 to expand the basis for denial, suspension, and revocation of tobacco permits with effect from February 4, 2009.
Based on the February 4, 2009, enactment and effective date of the changes to the criteria for denial, suspension, and revocation of permits and the April 1, 2009, effective date of the tax increases and floor stocks tax, TTB concluded that proper administration and enforcement of those statutory requirements necessitated the immediate adoption of implementing regulations as a temporary rule to ensure that affected industry members would be able to act pursuant to the new regulatory requirements in a timely fashion. Accordingly, on March 31, 2009, TTB published in the
In the temporary rule, TTB amended the tobacco and cigarette papers and tubes regulations in parts 40, 41, 44, and 46 to reflect the new excise tax rates, provided examples of computations using the new tax rates, and revised subpart I of part 46 to implement the new floor stocks tax imposed by the Act. TTB also included the expanded basis for denial, suspension and revocation of tobacco permits in the pertinent sections of the TTB regulations, that is, in §§ 40.74, 40.332, 41.198, 44.92, 44.162, 71.46, and 71.49b.
In the Supplementary Information section of T.D. TTB-75, TTB provided a detailed summary of the changes brought about by sections 701 and 702(b) of the Act and also outlined the considerations that TTB applied while drafting the regulatory changes set forth in the temporary rule. In conjunction with the publication of T.D. TTB-75, TTB also published a notice of proposed rulemaking, Notice No. 93, in the
TTB received seven comments on the temporary rule during the public comment period. Four of the commenters were individuals who did not indicate any organizational affiliation. The comments of these four individuals primarily concerned the terms of the legislation rather than any TTB interpretation reflected in the implementing regulations, and for this reason they are not pertinent to this final rule document. However, one of these commenters also posed two questions, which we describe and respond to below:
• Would using cigarette papers for marijuana affect the tax rate? No. The tax applies to the product as it is removed from the manufacturing facility, and is not affected by the end use of the product.
• What is a cigarette tube? A cigarette tube is defined in 26 U.S.C. 5702 as a cigarette paper made into a hollow cylinder for use in making cigarettes.
Two commenters were tobacco company representatives. These commenters posed questions or submitted comments concerning marking and reporting requirements for “roll-your-own” tobacco. As noted in T.D. TTB-75, section 702(d) of the Act expanded the definition of “roll-your-own” tobacco to include tobacco for making cigars and tobacco for use as wrappers for cigars, effective April 1, 2009. The questions and comments on the definition of “roll-your-own” tobacco from these two commenters are not addressed in this final rule document because the definition change at issue and the related regulatory changes are the subject of a separate rulemaking, T.D. TTB-78, published in the
Finally, the American Legacy Foundation, which identified itself as a national, independent public health foundation, commented that TTB's large cigar reporting rules should be amended to define cigarillos and provide for reporting of cigarillos separate from other large cigars. This commenter stated that “more refined information would make a valuable contribution to both tax and public health policy.”
Since T.D. TTB-75 and Notice No. 93 did not address any changes to reporting categories, it would be inappropriate to consider any changes related to this issue in this final rule document. TTB may consider changes to its reporting requirements in the future if it finds it necessary to make such changes to protect the revenue.
As a result of a review of the temporary rule after its publication, TTB determined that it is necessary to include the following changes in this final rule document to correct errors that appeared in the regulatory texts contained in T.D. TTB-75:
• In 27 CFR 41.35, we are inserting the word “tubes” in place of “papers” in the chart showing the old and new tax rates for cigarette tubes.
• In 27 CFR 41.81(c)(4)(iii), 41.106(a)(6), and 41.110(f), we are inserting “of more than” in place of “equal to or more than”. This change conforms the regulatory language to the statutory language in 26 U.S.C. 5701(a)(2).
• In 27 CFR 44.92, we are redesignating paragraphs (a)(2)(A)
As noted above, T.D. TTB-78 implemented other amendments made by the Act and included changes to the heading and text of § 40.25a and to the text of § 41.30, which superseded the regulatory amendments made by T.D. TTB-75. Accordingly, the T.D. TTB-75 amendments to these provisions are not adopted as part of this final rule action. In addition, T.D. TTB-78 revised the title and authority citation for part 41, and therefore we reflect the new title and authority citation in this final rule.
Based on the rulemaking history outlined above, TTB has determined that, with the exception of the provisions superseded by T.D. TTB-78 noted above, the temporary regulations published in T.D. TTB-75 should be adopted as a final rule, with the corrections discussed above.
Pursuant to the requirements of the Regulatory Flexibility Act (5 U.S.C. chapter 6), we certify that these regulations will not have a significant economic impact on a substantial number of small entities. Any revenue effects of this rulemaking on small businesses flow directly from the underlying statute. Likewise, any secondary or incidental effects, and any reporting, recordkeeping, or other compliance burdens flow directly from the statute. Accordingly, a regulatory flexibility analysis is not required. Pursuant to 26 U.S.C. 7805(f), the temporary regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and we received no comments.
It has been determined that this rule is not a significant regulatory action as defined in E.O. 12866. Therefore, a regulatory assessment is not required.
TTB has provided estimates of the burdens that the collections of information contained in these regulations impose, and the estimated burdens has been reviewed and approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned control numbers 1513-0129 and 1513-0030.
Under the Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
Comments concerning suggestions for reducing the burden of the collections of information in this document should be directed to Mary A. Wood, Alcohol and Tobacco Tax and Trade Bureau, at any of these addresses:
• P.O. Box 14412, Washington, DC 20044-4412;
• 202-453-2686 (facsimile); or
•
Marjorie D. Ruhf of the Regulations and Rulings Division drafted this document. Other employees of the Alcohol and Tobacco Tax and Trade Bureau participated in its development.
Cigars and cigarettes, Claims, Customs duties and inspection, Electronic funds transfers, Excise taxes, Imports, Labeling, Packaging and containers, Puerto Rico, Reporting and recordkeeping requirements, Surety bonds, Tobacco, Virgin Islands, Warehouses.
Aircraft, Armed Forces, Cigars and cigarettes, Claims, Customs duties and inspection, Excise taxes, Exports, Foreign trade zones, Labeling, Packaging and containers, Reporting and recordkeeping requirements, Surety bonds, Tobacco, Vessels, Warehouses.
26 U.S.C. 5701-5705, 5708, 5712, 5713, 5721-5723, 5741, 5754, 5761-5763, 6301, 6302, 6313, 6402, 6404, 7101, 7212, 7342, 7606, 7651, 7652, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.
26 U.S.C. 448, 5701-5705, 5711-5713, 5721-5723, 5731-5734, 5741, 5751, 5754, 6061, 6065, 6151, 6402, 6404, 6806, 7011, 7212, 7342, 7606, 7805; 31 U.S.C. 9301, 9303, 9304, 9306.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for Lyme Community Days Fireworks on Chaumont Bay, Lyme, New York. All vessels are prohibited from transiting the zone except as specifically authorized by the Captain of the Port or a designated representative. This action is necessary and intended to ensure safety of life on navigable waters immediately prior to, during, and immediately after the fireworks event.
This rule is effective from 9:30 p.m. to 10 p.m. on July 24, 2010.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0652 and are available online by going to
If you have questions on this temporary rule, call or e-mail MST2 Jessica Seguin, The Marine Events Coordinator, Coast Guard; telephone: 716-843-9353, e-mail:
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the permit application associate with this event was not received in time and given the risks to the public created by fireworks displays, delaying the publication of this rule would be contrary to the public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on the explosive hazards of fireworks, the Captain of the Port Buffalo has determined that fireworks launches proximate to watercraft pose a significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.
A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of a fireworks display in conjunction with the Lyme Community Days Fireworks. The fireworks display will occur from 9:30 p.m. to 10 p.m. on July 24, 2010. The safety zone will encompass all waters of Chaumont Bay, Lyme, New York in a 210 ft radius from position 44°4′6.03″ N and 76°8′54.61″ W (DATUM: NAD 83). Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
This determination is based on the minimal time that the area will be restricted. The Coast Guard expects this area will have an insignificant adverse impact to mariners from the zones activation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit the specified portion of Chaumont Bay, New York from 9:30 p.m. until 10 p.m. on July 24, 2010.
This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for only 30 minutes in a low vessel traffic area. Vessel traffic can pass safely around the zone. Before the effective period, we will issue maritime advisories, which include a Local Notice to Mariners and a Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encourage to contact the point of contact listed under
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his on-scene representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.
(5) Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo or his on-scene representative.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific sardine off the coasts of Washington, Oregon and California. This action is necessary because the directed harvest allocation total for the second seasonal period (July 1 - September 14) is projected to be reached by the effective date of this rule. From the effective date of this rule until September 15, 2010, Pacific sardine can only be harvested as part of the live bait fishery or incidental to other fisheries; the incidental harvest of Pacific sardine is limited to 30-percent by weight of all fish per trip. Fishing vessels must be at shore and in the process of offloading at 12:01 am Pacific Daylight Time on date of closure.
Effective 12:01 am Pacific Daylight Time (PDT) July 22, 2010, through September 14, 2010.
Joshua Lindsay, Southwest Region, NMFS, (562) 980-4034.
This document announces that based on the best available information recently obtained from the fishery and information on past effort, the directed fishing harvest allocation for the second allocation period (July 1 - September 14) will be reached and therefore directed fishing for Pacific sardine is being closed until September 15, 2010. Fishing vessels must be at shore and in the process of offloading at the time of closure. From 12:01 am on the date of closure through September 14, 2010, Pacific sardine may be harvested only as part of the live bait fishery or incidental to other fisheries, with the incidental harvest of Pacific sardine limited to 30-percent by weight of all fish caught during a trip.
NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). Annual specifications published in the
Under 50 CFR 660.509, if the total HG or these apportionment levels for Pacific sardine are reached at any time, NMFS is required to close the Pacific sardine fishery via appropriate rulemaking and it is to remain closed until it re-opens either per the allocation scheme or the beginning of the next fishing season. In accordance with § 660.509 the Regional Administrator shall publish a notice in the
The above in-season harvest restrictions are not intended to affect the prosecution of the live bait portion of the Pacific sardine fishery.
This action is required by 50 CFR 660.509 and is exempt from Office of Management and Budget review under Executive Order 12866.
NMFS finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) for the closure of the directed harvest of Pacific sardine. For the reasons set forth below, notice and comment procedures are impracticable and contrary to the public interest. For the same reasons, NMFS also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this action. This measure responds to the best available information and is necessary for the conservation and management of the Pacific sardine resource. A delay in effectiveness would cause the fishery to exceed the in-season harvest level. These seasonal harvest levels are important mechanisms in preventing overfishing and managing the fishery at optimum yield. The established directed and incidental harvest allocations are designed to allow fair and equitable opportunity to the resource by all sectors of the Pacific sardine fishery and to allow access to other profitable CPS fisheries, such as squid and Pacific mackerel.
Many of the same fishermen who harvest Pacific sardine rely on these other fisheries for a significant portion of their income.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting.
The U. S. Department of Energy (DOE) determined that the current active mode provisions in its test procedure for microwave ovens do not produce accurate and repeatable test results, and is also unaware of any test procedures that have been developed that address the concerns with the DOE microwave oven cooking efficiency test procedure. Elsewhere in today's
DOE will hold a public meeting on Thursday, September 16, 2010, from 9 a.m. to 4 p.m., in Washington, DC. DOE must receive requests to speak at the public meeting before 4 p.m., Thursday, September 2, 2010. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Thursday, September 9, 2010.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue, SW., Washington, DC 20585-0121. To attend the public meeting, please notify Ms. Brenda Edwards at (202) 586-2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures.
Any comments submitted must identify the notice of public meeting (NOPM) on the Test Procedure for Microwave Ovens, and provide the docket number EERE-2010-BT-TP-0023 and/or regulatory information number (RIN) 1904-AC26, Comments may be submitted using any of the following methods:
1.
2.
3.
4.
Mr. Wes Anderson, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7335. E-mail:
Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7796. E-mail:
For information on how to submit or review public comments and on how to participate in the public meeting, contact Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. E-mail:
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291
Manufacturers of covered products must use DOE test procedures to certify that their products comply with energy conservation standards adopted under EPCA and to represent the efficiency of their products. (42 U.S.C. 6295(s); 42 U.S.C. 6293(c)) DOE must also use DOE test procedures in any action to determine whether covered products comply with EPCA standards. (42 U.SC. 6295(s)) Criteria and procedures for DOE's adoption and amendment of such test procedures, as set forth in EPCA, require that test procedures be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. Test procedures must also not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
DOE's test procedure for microwave ovens was established as part of an October 3, 1997, final rule that also revised the test procedures for other cooking products to measure their efficiency and energy use more
As part of the appliance standards analysis leading to a final rule published on April 8, 2009 (74 FR 16040), DOE tested 32 microwave ovens, and the Association of Home Appliance Manufacturers (AHAM) tested 21 additional units, for a total of 53 microwave ovens, according to the DOE microwave oven test procedure, using provisions from both IEC Standard 705 and IEC Standard 60705.
Because DOE is not aware of other existing test procedures that produce representative and repeatable cooking efficiency measurements for microwave ovens, and because of the issues with using the existing DOE microwave oven test procedure, DOE has published a final rule elsewhere in today's
The public meeting announced in today's notice is the first step in considering the development of a new active mode test procedure for microwave ovens. DOE will work with industry and interested parties to discuss the various issues associated with the current microwave oven test procedure, and to determine if any test methods are currently available to address these concerns.
DOE will make a presentation summarizing the current status and will initiate a discussion regarding any test procedures that could help address each issue. DOE encourages those who wish to participate in the meeting to make presentations that address these issues. If you would like to make a presentation during the meeting, please inform Ms. Edwards at least two weeks before the date of the meeting and provide her with a copy of your written material at least one week before the date of the meeting.
The meeting will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by antitrust law. After the meeting and a period for written statements, DOE will begin collecting data and developing a notice of proposed rulemaking for the microwave oven test procedure.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking.
On October 17, 2008, the U.S. Department of Energy (DOE) issued a notice of proposed rulemaking (NOPR) in which DOE proposed test procedures for microwave ovens under the Energy Policy and Conservation Act (EPCA) to measure standby mode and off mode power use by microwave ovens. To address issues raised in comments responding to the NOPR, DOE conducted additional research and analysis. In today's supplemental notice of proposed rulemaking (SNOPR), DOE proposes adopting definitions of modes based on the relevant provisions from the IEC Standard 62301,
DOE will hold a public meeting on Thursday, September 16, 2010, from 9 a.m. to 4 p.m., in Washington, DC. DOE must receive requests to speak at the public meeting before 4 p.m., Thursday, September 2, 2010. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Thursday, September 9, 2010.
DOE will accept comments, data, and information regarding this SNOPR before and after the public meeting, but no later than October 4, 2010. For details, see section V, “Public Participation”, of this SNOPR.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue, SW., Washington, DC 20585-0121. To attend the public meeting, please notify Ms. Brenda Edwards at (202) 586-2945. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures. Any foreign national wishing to participate in the meeting should advise DOE as soon as possible by contacting Ms. Edwards to initiate the necessary procedures.
Any comments submitted must identify the SNOPR on Test Procedures for Microwave Ovens, and provide the docket number EERE-2008-BT-TP-0011 and/or regulatory information number (RIN) 1904-AB78. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
For detailed instructions on submitting comments and additional information on the rulemaking process, see section V (Public Participation) of this document.
Mr. Wes Anderson, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7335. E-mail:
Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Tel.: (202) 586-7796. E-mail:
Title III of the Energy Policy and Conservation Act (42 U.S.C. 6291
Manufacturers of covered products must use DOE test procedures to certify that their products comply with energy conservation standards adopted under EPCA and to represent the efficiency of their products. (42 U.S.C. 6295(s); 42 U.S.C. 6293(c)) DOE must also use DOE test procedures in any action to determine whether covered products comply with EPCA standards. (42 U.S.C. 6295(s)) Criteria and procedures for DOE's adoption and amendment of such test procedures, as set forth in EPCA, require that test procedures be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use. Test procedures must also not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
If DOE determines that a test procedure amendment is warranted, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2)) In any rulemaking to amend a test procedure, DOE must determine to what extent the proposed test procedure would alter the measured energy efficiency of any covered product as determined under the existing test procedure. (42 U.S.C. 6293(e)(1)) If DOE determines that the amended test procedure would alter the measured efficiency of a covered product, DOE must amend the applicable energy conservation standard accordingly. (42 U.S.C. 6293(e)(2))
DOE is also required to amend the test procedures for covered products to address standby mode and off mode energy consumption and to integrate such energy consumption into the energy descriptor for that product unless the current test procedures already fully account for such consumption. If integration is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) Any such amendment must consider the most current versions of IEC Standards 62301 [“Household electrical appliances—Measurement of standby power,” First Edition 2005-06 (IEC Standard 62301)
Historically, DOE's test procedure for microwave ovens appeared at appendix I to subpart B of Title 10 of the Code of Federal Regulations (CFR).
DOE published a notice of proposed rulemaking (NOPR) on October 17, 2008
After the October 2008 TP NOPR was published, DOE determined that it would consider the revised version of IEC Standard 62301,
DOE later received information that IEC Standard 62301 Second Edition is not expected to be issued until late 2010. Because EPCA requires DOE to establish test procedures for standby and off mode by March 31, 2011 and DOE is conducting a concurrent energy conservation standards rulemaking for standby and off mode energy use, discussed below, DOE publishes today's SNOPR to consider the new mode definitions from the most recent draft version of IEC Standard 62301, designated as IEC Standard 62301 Second Edition, Committee Draft for Vote (IEC Standard 62301 CDV). IEC Standard 62301 CDV contains proposed amendments to IEC Standard 62301, including new mode definitions based on those proposed in IEC Standard 62301 Second Edition, Committee Draft 2 (IEC Standard 62301 CD2)
As stated in the previous paragraph, DOE is considering amended microwave oven energy conservation standards addressing standby and off mode energy use concurrently with the test procedure rulemaking process. The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-12), which amended EPCA, established prescriptive standards for kitchen ranges and ovens, but no standards were established for microwave ovens. 42 U.S.C. 6295(h) The NAECA amendments also required DOE to conduct two cycles of rulemakings to determine whether to revise the standard. DOE undertook the first cycle of these rulemakings and issued a final rule on September 8, 1998 (63 FR 48038), in which DOE found that no amended standards were justified for electric cooking products, including microwave ovens.
DOE initiated the second cycle of energy conservation standards rulemakings for cooking products by publishing a framework document covering, in part, microwave ovens, and giving notice of a public meeting and the availability of the document. 71 FR 15059 (March 27, 2006). In its subsequent advance notice of proposed rulemaking (ANOPR) (72 FR 64432, Nov. 15, 2007; hereafter the November 2007 ANOPR) concerning energy conservation standards for commercial clothes washers and residential dishwashers, dehumidifiers, and cooking products, including microwave ovens (hereafter referred to as the appliance standards rulemaking), DOE determined that energy consumption by microwave ovens in the standby mode represents a significant portion of microwave oven energy use, and that a standard regulating such energy consumption would likely have significant energy savings. 72 FR 64432, 64441-42 (Nov. 15, 2007). Before standby power could be included in an efficiency standard for microwave ovens, however, test procedures for the measurement of standby power would be required.
On December 13, 2007, DOE held a public meeting to receive and discuss comments on the November 2007 ANOPR (hereafter referred to as the December 2007 public meeting). At the December 2007 public meeting, DOE presented for discussion the possibility that test standard IEC Standard 62301 First Edition could be incorporated by reference into DOE's microwave oven test procedure to measure standby power. DOE also discussed clarifications to the IEC Standard 62301 test conditions at the December 2007 public meeting, including a requirement that, if the measured power is not stable, the standby mode power test would be run for a period of 12 hours with an initial clock setting of 12 a.m. This would permit more accurate measurement of average standby power consumption.
DOE published a NOPR for the appliance standards rulemaking on October 17, 2008, in which it tentatively concluded that a standard for microwave oven standby mode and off mode energy consumption would be technologically feasible and economically justified. 73 FR 62034. DOE received responses to the NOPR from interested parties regarding the harmonization of standards and test procedures with those of other countries and international agencies. As a result of these comments, DOE decided to consider the revised version of IEC Standard 62301 (
In a final rule published on April 8, 2009 (74 FR 16040), DOE established amended standards for gas cooking products, but again found that no active mode cooking efficiency standards were justified for electric cooking products, including microwave ovens. This rulemaking completed the second cycle of rulemakings required by the NAECA amendments to EPCA. (42 U.S.C. 6295(h)(2))
In its analysis for the second cycle of rulemakings, DOE determined that the microwave oven test procedure provisions to measure cooking efficiency do not produce accurate and repeatable test results. DOE is unaware of any test procedures that have been developed that address the concerns with the DOE microwave oven cooking efficiency test procedure. DOE, therefore, repealed the regulatory provisions establishing the cooking efficiency test procedure for microwave ovens under EPCA in a final rule published elsewhere in today's
In the October 2008 TP NOPR and this SNOPR, DOE proposes amending its test procedures for microwave ovens to:
(1) Assist DOE in the concurrent development of energy conservation standards that address use of standby mode and off mode power by this product.
(2) Address the statutory requirement to establish procedures for the measurement of standby mode and off mode power consumption.
In the October 2008 TP NOPR, DOE proposed incorporating by reference specific clauses from IEC Standard 62301 regarding test conditions and testing procedures for measuring the average standby mode and average off mode power consumption into the microwave oven test procedure.
The EISA 2007 amendments to EPCA direct DOE to amend the microwave oven test procedure to integrate energy consumption in standby mode and off mode into the overall energy descriptor. (42 U.S.C. 6295(gg)(2)(A)) If that is technically infeasible, DOE must instead prescribe a separate standby mode and off mode energy use test procedure, if technically feasible.
In response to the October 2008 TP NOPR, DOE received comments from interested parties regarding the accuracy and repeatability of the existing DOE microwave oven test procedure for measuring cooking efficiency. Because of issues DOE identified with using its existing microwave oven test procedure, including the large test-to-test variation in cooking efficiency measurements, and because DOE is unaware of any test procedures that have been developed that address the concerns with the DOE microwave oven cooking efficiency test procedure raised by these interested parties, DOE repealed the provisions in the existing microwave oven test procedure relating to the measurement of cooking efficiency and energy factor (EF) elsewhere in today's
As noted above, EPCA requires that DOE determine whether a proposed test procedure amendment would alter the measured efficiency of a product, thereby requiring adjustment of existing standards. (42 U.S.C. 6293(e)) Because there are currently no Federal energy conservation standards for microwave ovens (including energy use in the standby and off modes), such requirement does not apply to this rulemaking. DOE is conducting a concurrent rulemaking process to consider standby and off mode energy conservation standards and will consider this test procedure rulemaking as any standards are developed.
This proposal would amend the test procedures for kitchen ranges and ovens to include test procedures for the measurement of standby mode and off mode power use for microwave ovens. This proposal would also clarify that the definition of “microwave oven” in 10 CFR 430.2 includes microwave ovens with or without thermal elements designed for surface browning of food and combination ovens.
DOE defines “microwave oven” as “a class of kitchen ranges and ovens which is a household cooking appliance consisting of a compartment designed to cook or heat food by means of microwave energy.” 10 CFR 430.2. In the October 2008 TP NOPR, DOE stated that the proposed amendments would establish test procedures for all microwave ovens for which the primary source of heating energy is electromagnetic (microwave) energy, including microwave ovens with or without thermal elements designed for surface browning of food. DOE stated that the proposal did not address test procedures for combination ovens (
The Association of Home Appliance Manufacturers (AHAM), GE Consumer & Industrial (GE), Pacific Gas & Electric (PG&E), Whirlpool Corporation (Whirlpool), and Earthjustice (EJ) commented that the proposed definition for products covered by this test procedure was unclear, seeking clarification on the definition of a “microwave oven” and “combination oven” and whether combination ovens would be covered by the test procedure. (AHAM, No. 8 at pp. 1-2; GE, Public Meeting Transcript, No. 7 at pp. 16-17; PG&E, Public Meeting Transcript, No. 7 at pp. 24-25, 32; Whirlpool, Public Meeting Transcript, No. 7 at p. 21; EJ, Public Meeting Transcript, No. 7 at pp. 24, 32)
The Appliance Standards Awareness Project (ASAP) questioned the need to determine whether combination ovens fall within the definition of a microwave oven for this rulemaking, because the rulemaking is focused on standby power. (ASAP, Public Meeting Transcript, No. 7 at p. 26) GE cited DOE's statement in the October 2008 TP NOPR that the proposal does not provide test procedures for combination ovens because DOE did not have sufficient efficiency characteristic data to include these products in the rulemaking, but that microwave ovens
AHAM, likewise, noted no mention of “thermal elements designed for surface browning of food” in the definition in 10 CFR 430.2, and added that the proposed definition for microwave ovens is inconsistent with current regulations. AHAM urged DOE to clarify these definitions through a transparent process involving all interested parties. (AHAM, No. 8 at p. 2) Whirlpool added that they manufacture a product, and believes GE does as well, that can work as a microwave only, work as a convection oven, or in combination and questioned whether this would be a covered product. (Whirlpool, Public Meeting Transcript, No. 7 at p. 21)
ASAP commented that they understood a microwave grill to be a microwave and not a combination oven, questioned whether such a unit with a combined cooking cycle would be considered a covered product, and asked whether DOE had information indicating that combination ovens cannot be measured under the test procedure proposed in the October 2008 TP NOPR. (ASAP, Public Meeting Transcript, No. 7 at p. 18) PG&E stated that for products with browning functions that cook by microwave energy, the controls could be set to use only the browning function, in which case the product would not be covered (PG&E, Public Meeting Transcript, No. 7 at pp. 19-20), and noted that many microwaves in homes also have functions which would cause them to be classified as combination ovens. (PG&E, Public Meeting Transcript, No. 7, pp. 21-22) EJ stated that even a combination product would still be considered a household cooking appliance that consists of a compartment designed to cook or heat food using microwave energy. (EJ, Public Meeting Transcript, No. 7 at p. 24)
ASAP, Alliance to Save Energy (ASE), American Council for an Energy-Efficient Economy (ACEEE), Natural Resources Defense Council (NRDC), Northeast Energy Efficiency Partnerships (NEEP), Northwest Power and Conservation Council (NPCC), and Southern California Edison (SoCal Edison) in a joint comment (hereafter “Joint Comment”) supported the application of the proposed standard and test procedure to at least the category of microwave ovens specified in the October 2008 TP NOPR, and supported their application to all microwave ovens, including combination ovens, in the absence of evidence that the proposed standard and test procedure are unreasonable. (Joint Comment, No. 11 at pp. 1-2) The Joint Comment supported Whirlpool's assertion that DOE appears to be creating a new product definition, and stated that, although DOE's proposed exclusion of combination ovens does not appear in the draft text of either the proposed microwave oven efficiency standard or revision to the test procedure, the plain reading of the October 2008 TP NOPR makes it clear that some portion of this product class is proposed to be carved out for separate treatment. The Joint Comment pointed out that manufacturers have not presented evidence that the proposed test procedure
ASAP noted that DOE elected to move the test procedure modification for microwave ovens forward to incorporate standby mode while the remainder of cooking products will be addressed by the EISA 2007 statutory date, and inquired about the interpretation that combination ovens would thus be addressed in the 2011 rulemaking. (ASAP, Public Meeting Transcript, No. 7 at pp. 29-31)
GE noted that the majority of over-the-range units are microwave only and are not combination modes (GE, Public Meeting Transcript, No. 7 at p. 33) and combination ovens represent a smaller segment of the market. (GE, Public Meeting Transcript, No. 7 at pp. 28-29) EJ commented that although combination ovens are a very small portion of the market, they represent higher-end units that presumably would be the ones with the thermal elements and are more likely to have high-intensity displays, maybe with backing fluorescents. EJ pointed out that DOE could be allowing manufacturers to have excessive standby consumption on those products deemed to be combination ovens, if they are not covered. (EJ, Public Meeting Transcript, No. 7 at p. 32)
The Joint Comment also noted that excluding subclasses of microwave ovens that comprise a significant share of the total microwave oven market from the coverage of the standby efficiency standard could invite actions by States to set efficiency standards for those uncovered products. (Joint Comment, No. 11 at p. 2) PG&E suggested clarifying what products are covered, because California and PG&E intend to pursue a state standard for combination ovens. (PG&E, Public Meeting Transcript, No. 7 at pp. 24-25) PG&E also stated that it would advocate in California for a prescriptive standard covering just standby energy use of combination ovens to bring it in line with microwave-only products. (PG&E, Public Meeting Transcript, No. 7 at p. 32)
In response, DOE first notes that, for this SNOPR, it conducted a survey of microwave oven models currently available on the U.S. market, including countertop, over-the-range, and built-in configurations. DOE determined that fewer than 1 percent of the available models (1 out of 129) have thermal elements for grilling but no convection capability, while 16 percent (21 out of 129) are combination units (microwave + convection and possibly thermal elements). Although DOE does not have shipment-weighted data regarding the percentage of microwave ovens with thermal elements for grilling or combination ovens, DOE does not believe that including microwave ovens with thermal elements only, with or without further specification of the function of the thermal elements, would substantially affect the number or scope of covered products in this rulemaking. DOE proposes to clarify that microwave ovens with thermal elements only would be considered covered products under the definition provided in 10 CFR 430.2. Based on DOE's product literature review for the single available microwave oven with thermal elements only, DOE believes that the standby and off mode operation for microwave ovens with thermal elements only does not differ from that of microwave-only units.
DOE also proposes to clarify that combination microwave ovens (
This SNOPR does not affect DOE's proposal from the October 2008 TP NOPR that the test procedure would cover microwave ovens with and without browning (thermal) elements. However, this SNOPR clarifies what is meant by a combination oven and revises the proposal to include microwave ovens that incorporate convection systems as products to which the test procedures would be applicable. Because DOE tentatively determines that the operation in standby and off mode for microwave-only units, microwave ovens with thermal elements only, and combination microwave ovens is the same, DOE is proposing that the same test procedure amendments for standby and off mode testing, discussed in the sections below, be used for all of these product types. DOE welcomes comment on this determination and whether there are additional standby and off modes or other product features for each particular type of microwave oven that would require separate testing procedures.
As indicated above, EPCA requires that the microwave oven test procedure be amended to incorporate measurement of standby mode and off mode power by March 31, 2011. While DOE published a NOPR on October 17, 2008 and subsequently a final rule on April 8, 2009 for the appliance standards rulemaking, DOE determined it appropriate to consider the revised IEC Standard 62301 Second Edition, expected in July 2009, in determining whether to adopt energy conservation standards for the standby mode and off mode power consumption of microwave ovens. As noted in section I, DOE was later notified that the revised IEC Standard 62301 would not be available until late 2010, and determined to publish today's SNOPR to consider the new mode definitions from the language in IEC Standard 62301 CDV.
The effective date of the standby and off mode test procedures would be 30 days after the date of publication in the
AHAM suggested DOE harmonize its effective date with the 2013 effective date for a 1-Watt (W) standard in other countries (AHAM, Public Meeting Transcript, No. 7 at p.10), noting that many other countries are moving to 1-W standby requirements or targets for reporting, and the European Union (EU) is moving towards manufacturer self-reporting. AHAM stated that DOE's proposed standards are going to be one of the most stringent in the world (AHAM, Public Meeting Transcript, No. 7 at pp. 34-35), and as Europe is on the forefront of standby power guidelines and clarifications (AHAM, Public Meeting Transcript, No. 7 at p. 9), DOE must ensure that test procedures are as thorough and current as possible and capable of harmonization with international standards. (AHAM, No. 8 at p.1)
AHAM cited deficiencies in the proposed microwave oven test procedure and suggested that the test procedure be modified and reviewed based on the original timeline of March 31, 2011, for incorporation of standby power into kitchen ranges and ovens. This, AHAM suggested, would ensure that the test procedure is accurate and consistent across all products and within the international community. (AHAM, No. 8 at p. 4) GE and Whirlpool agreed with AHAM's comments regarding the status and condition of the proposed test procedure (GE, No. 9 at p. 2; Whirlpool, No. 10, at p.1), and Whirlpool also noted that the EU has promulgated a standard for standby and off mode energy consumption (1-W standby mode, 0.5-W off mode) using a draft of IEC Standard 62301, with an effective date of January 2013. Whirlpool asserted that consumers would benefit from lower product costs if manufacturers were able to plan for one harmonized effective date for standards in the United States and Europe. (Whirlpool, No. 10 at p.1)
As noted above, DOE determined it appropriate to consider the revised IEC Standard 62301 Second Edition, expected in July 2009, in developing energy conservation standards for microwave oven standby and off mode power consumption. DOE was later notified that the revised IEC Standard 62301 would not be available until late-2010 and, therefore, determined to consider the language from IEC Standard 62301 CDV. DOE noted that the EU recently enacted the Commission Regulation (EC) No. 1275/2008 of December 17, 2008, implementing design requirements for standby and off mode power for electrical and electronic household and office equipment, including microwave ovens. The regulation specifies the maximum allowable power consumption for standby mode and off mode with phased effective dates in 2010 and 2013. Although these international effective dates are not the basis for DOE's energy conservation standards rulemaking schedule for microwave ovens, DOE's determination to consider the language from IEC Standard 62301 CDV as this rulemaking proceeds will result in a methodology and an effective date which are harmonized to the extent possible with certain international standby and off mode standards.
GE commented that it could be difficult for manufacturers to meet the 1-W standard while providing consumer utility, especially for over-the-range units, which, according to GE,
The Joint Comment stated that deferring the microwave oven test procedure revision until after the finalization of the cooking products rule will result in the exclusion of subclasses of microwave ovens, which would imply that States could set efficiency standards for these products. The Joint Comment further stated that, in this case, some States may not realize these energy savings until 2020—the earliest effective date for a subsequent federal cooking products rulemaking—but cost-effective methods to reduce unnecessary standby consumption from microwave ovens are more immediately available. (Joint Comment, No. 11 at p. 2) As discussed above, DOE is considering energy conservation standards for microwave oven standby mode and off mode energy consumption in a concurrent rulemaking process.
Historically, DOE's microwave oven test procedure provided for the calculation of several measures of energy consumption, including cooking efficiency, energy factor (EF), and annual energy consumption, and DOE's rulemaking analyses have used EF as the energy conservation metric for microwave ovens.
A number of commenters provided input on the integration of standby and off mode test procedures in response or the October 2008 TP NOPR, in which DOE proposed separate metrics (average standby mode power (P
AHAM commented that it is not practical to include standby and off mode power into a single energy descriptor because standby power is a substantial fraction of the overall energy use of a microwave oven (AHAM, No. 8 at pp. 3-4), while the Joint Comment supported DOE's conclusion for a separate metric. (Joint Comment No. 11 at p. 4) Whirlpool agreed that, although a combination energy descriptor is arithmetically possible, such a metric would be illogical and should not be pursued. (Whirlpool, No. 10 at p. 1) PG&E commented that microwave ovens do not have high annual energy usage, and that the range of cooking efficiency between the best and the worst is only 5-7 percent; this implies that cooking efficiency is not a significant opportunity for regulation, but that standby efficiency is significant. (PG&E Public Meeting Transcript, No. 7 at p. 41)
ASAP also cited substantial problems with the test procedure for measuring cooking efficiency that have not yet been addressed, including a lack of repeatable and consistent results and the possibility that the challenge of dealing with cooking efficiency is being compounded by rating the cooking efficiency of combination ovens in their various cooking modes. (ASAP, Public Meeting Transcript, No. 7 at p. 25) PG&E noted that heat transfer in a microwave oven depends on the specific resistivity of the load, and that pure water has relatively low specific resistivity, and items that might be cooked in a microwave oven would have more salt and thus absorb microwave energy more efficiently than pure water. PG&E noted that, while water is easily obtainable for testing, using it probably results in lower cooking efficiency measurements than would be expected from using actual food products. (PG&E, Public Meeting Transcript, No. 7 at pp. 44-45)
DOE addressed the issues with the cooking efficiency measurement in its repeal of the active mode test procedure and notice announcing a public meeting to discuss the development of new active mode test procedure published elsewhere in today's
EPCA, as amended by EISA 2007, requires that DOE consider the most current versions of IEC Standards 62301 and 62087 when amending test procedures to include standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)(A))
DOE noted in the October 2008 TP NOPR that IEC Standard 62301 provides for the measurement of standby power in electrical appliances, including microwave ovens, and, thus, is applicable to the proposed amendments to the test procedure. As discussed in more detail below, the SNOPR does not affect DOE's proposal of the clauses from sections 4 and 5 of IEC Standard 62301 identified in the October 2008 TP NOPR, but proposes to incorporate by reference two additional paragraphs in response to comments. DOE also reviewed IEC Standard 62087, which specifies methods of measurement for the power consumption of TV receivers, VCRs, set top boxes, audio equipment, and multi-function equipment for consumer use. IEC Standard 62087 does not, however, include measurement for the power consumption of electrical appliances such as microwave ovens. Therefore, DOE determined that IEC Standard 62087 was not suitable for the proposed amendments to the microwave oven test procedure for this rulemaking. 73 FR 62134, 62139 (Oct. 17, 2008).
In considering IEC Standard 62301, DOE noted that the microwave oven standby power data that AHAM provided to DOE for the energy conservation standards rulemaking were based on measurements of standby power in accordance with IEC Standard 62301, as were the data DOE gathered in response to interested parties'
In the October 2008 TP NOPR, DOE also considered harmonization of test procedures with international standby programs, such as the International Energy Agency (IEA) “1-Watt Plan.”
In the October 2008 TP NOPR, DOE also proposed incorporating specific clauses from IEC Standard 62301 by reference into the DOE test procedure for microwave ovens for the measurement of standby and off mode power. These clauses provide test conditions and testing procedures for measuring the average standby mode and average off mode power consumption: section 4 of IEC Standard 62301 provides conditions for the supply voltage waveform, ambient room air temperature, and power measurement meter tolerances to provide for repeatable and precise measurements of standby mode and off mode power consumption; and section 5 of IEC Standard 62301 clarifies the measurement of standby mode for units with a short-duration higher power state before a lower power state, and provides methods for measuring standby mode and off mode power when the power measurement is stable and unstable (
DOE also stated in the October 2008 TP NOPR that it believes that the proposed amendments to the microwave oven test procedure would provide a uniform and widely accepted test method for measuring standby mode and off mode power consumption. DOE also believes that the proposed amendments to the microwave oven test procedure would provide a method to measure the standby energy use of not just the clock display, but all microwave oven components, such as control electronics and power supply losses.
Finally, DOE recognized that the IEC is developing an updated test procedure (IEC Standard 62301 Second Edition). As discussed above, DOE proposed microwave oven test procedure amendments using IEC Standard 62301 First Edition 73 FR 62314, 62140-41 (Oct. 17, 2008). DOE also stated in the October 2008 TP NOPR that the IEC projected publication of the new test procedure in July 2009. DOE now understands that the revised IEC test procedure is not expected to be published until late 2010. For purposes of the EPCA requirement to consider the most current version of IEC Standard 62301, therefore, DOE considered IEC Standard 62301 First Edition for the October 2008 NOPR and this SNOPR. (42 USC 6295(gg)(20(A).
AHAM supports the inclusion of Section 4 and Section 5 from IEC Standard 62301 into the measurement of standby power. (AHAM, Public Meeting Transcript, No. 7 at pp. 52-53), but commented that DOE does not specify how the microwave oven should be set up during testing. AHAM also noted that DOE references IEC Standard 62301 Paragraph 5.1 “General” and Paragraph 5.3 “Procedure,” but neglects to reference Paragraph 5.2 “Preparation of Appliance or Equipment.” AHAM asserted that this step is crucial to a robust procedure, and that DOE should accept the clarification from IEC Standard 62301, Section 5.2 that “[t]he appliance shall be tested at factory or ‘default’ settings. Where there are no indications for such settings, the appliance shall be tested as supplied.” (AHAM, No. 8 at p. 3) The Joint Comment supported this recommendation. (Joint Comment, No. 11 at p. 4) GE also deemed the October 2008 TP NOPR unclear on how the unit should be set up for the standby measurement, and reinforced the importance of harmonizing with IEC Standard 62301. (GE, No. 9 at p. 3)
DOE agrees that incorporating paragraph 5.2, “Selection and preparation of appliance or equipment,” of IEC Standard 62301 provides clarification to the installation requirements for standby mode and off mode energy consumption testing. DOE also agrees that paragraph 5.2 of IEC Standard 62301 provides additional guidance regarding specifications for test setup that would result in a measure of standby and off mode energy consumption that best replicates actual consumer usage. For these reasons, DOE proposes in today's SNOPR to incorporate by reference paragraph 5.2 of IEC Standard 62301.
PR China underscored the importance of taking into account the accuracy of the equipment providing electrical supply for testing; pointing out that IEC Standard 62301 has a provision that the electrical supply should be 120 volts (V) ± 1 percent and 60 Hertz (Hz) ± 1 percent. PR China also noted that, according to Article 2.4 of the World Trade Organization/Technical Barriers to Trade Agreement (WTO/TBT Agreement),
DOE notes that section 4.3 of IEC Standard 62301 specifies the electrical supply requirements, stating that “where this standard is referenced by an external standard or regulation that specifies a test voltage and frequency, the test voltage and frequency so defined. Where the test voltage and frequency are not defined by an external standard, the test voltage and test frequency shall be * * *” 115 V ± 1 percent and 60 Hz ± 1 percent for North America. In addition, section 4.3 of IEC Standard 62301 specifies that some single phase voltages can be double the nominal voltage specified for that region, which would result in a voltage requirement of 230V ± 1 percent for North America. DOE believes that the accuracy of the electrical supply, including voltage and frequency, specified in IEC Standard 62301 are generally recognized as suitable for producing robust standby and off mode power measurements in microwave ovens. However, DOE conducted a product literature review to analyze the electrical supply requirements for microwave ovens available on the U.S. market and determined that all microwave ovens specify a rated voltage of 120V or 240V (for a small number of combination microwave ovens) and a frequency of 60 Hertz (Hz). For this reason, DOE proposes in today's SNOPR to specify electrical supply requirements of 120/240 V ± 1 percent
As discussed above in section III.A, because DOE has tentatively concluded that the operation in standby and off mode is the same for microwave-only units, microwave ovens with thermal elements only, and combination microwave ovens, DOE is proposing that the same test procedure amendments for standby and off mode testing discussed in this section be used for all of these product types.
DOE proposed using the EPCA definitions of “active mode,” “standby mode,” and “off mode” in the October 2008 TP NOPR. EPCA defines “standby mode” as the condition in which an energy-using product is connected to a main power source and offers one or more of the following user-oriented or protective functions: A remote switch (including remote control), internal sensor, or timer to facilitate the activation or deactivation of other functions (including active mode; and continuous functions, including information or status displays (including clocks) or sensor-based functions. (42 U.S.C. 6295(gg)(1)(A)(iii))
EPCA defines “off mode” as the condition in which an energy-using product is connected to a main power source and is not providing any standby mode or active mode function. (42 U.S.C. 6295(gg)(1)(A)(ii))
EPCA defines “active mode,” which is referenced in the definition of “off mode,” as the condition in which an energy-using product is connected to a main power source, has been activated, and provides one or more main functions. (42 U.S.C. 6295(gg)(1)(A)(i))
As discussed in the October 2008 TP NOPR, DOE considers “main functions” for a microwave oven to be those operations in which the magnetron and/or thermal element is energized for at least a portion of the time for purposes of heating, cooking, and/or defrosting the load. 73 FR 62134, 62141 (Oct. 17, 2008). DOE noted that a microwave oven with a continously energized display or cooking sensor, or a microwave oven that automatically powers down certain energy-consuming components after a cooking cycle and waits to detect an event to trigger re-energization of these components, would be considered capable of operation in standby mode but not off mode. DOE additionally noted that if the microwave oven is equipped with a manual power on/off switch, which completely cuts off power to the appliance (
AHAM and Whirlpool both stated that DOE's incorporation of the EISA 2007 standby and off mode definitions into the proposed microwave oven test procedure does not acknowledge the substantial effort and progress made by the IEC in clarifying these definitions during the past year. AHAM affirmed that IEC Standard 62301 CD2, even in draft form, should be included in this rulemaking to ensure that international consistency in standards and testing is obtained to the greatest extent practical. AHAM further stated that DOE can clarify the EISA 2007 language using IEC Standard 62301 CD2, which would result in a stronger, more consistent test procedure. (AHAM, No. 8 at p. 2; Whirlpool, No. 10 at p. 2) Whirlpool noted that EISA 2007 (Section 310 (gg)(1)(B)) allows the Secretary to amend the definitions of standby mode and off mode, taking into account revisions to IEC Standard 62301, and suggested DOE adopt IEC Standard 62301 CD2, along with the definitions and examples proposed by AHAM and Whirlpool, as discussed in section III.E. (Whirlpool, No. 10 at pp. 2-3) EJ disputed DOE's assumption that it cannot consider any pending amendments to IEC Standard 62301. (EJ, Public Meeting Transcript, No. 7 at p. 80) PG&E supports harmonization with international standards because of the international markets for these products. (PG&E, Public Meeting Transcript, No. 26 at p. 35) PR China suggested DOE amend its testing measures in accordance with IEC Standard 62301 or provide reasonable scientific basis for not doing so, noting that this is in accordance with Article 2.4 of the TWO/TBT Agreement. PR China suggested the U.S. government further harmonize standards in order to facilitate international trade. (PR China, No. 12 at p. 4)
AHAM commented that IEC Standard 62301 CD2 modernizes and clarifies the definitions for each mode, and proposed that DOE consider incorporating this language, or the clarifications AHAM provided in its submitted comments, into the DOE microwave oven test procedure (AHAM, No. 8 at pp. 2, 4, 5-6) Whirlpool supported the mode definitions and clarifying examples developed by AHAM members. (Whirlpool, No. 10 at pp. 2-3) AHAM stated that the industry's premise for this proposal is harmonization with the international community—in particular, Europe—on standby power standards. AHAM stated that its proposal utilizes elements of IEC Standard 62301 CD2 and the European directive published in June 2008 and provides clarification to EISA 2007 requirements for microwave ovens. (AHAM, No. 8 at p. 2) AHAM's proposed definitions include:
Off Mode
Off mode describes the status of an appliance when it is connected to the main electricity supply and is not providing any function. Off mode may persist for an indefinite period of time.
Off Mode includes:
1. LED or some other indication of off mode condition;
2. Electric noise reduction capacitor, choke or filter;
3. The state where a one-way remote control device will turn the product off, but cannot be used to activate the product;
4. Leakage current will occur in some appliances, and may include voltage and current flow in 208/230 volt appliances where only one leg of the line is isolated by the switch;
5. May include electrical energy flow to a primary transformer of some electronics units.
Standby Mode
Standby mode describes the status of an appliance when it is connected to the mains electricity supply and is not performing its primary function, but is providing a consumer or protective function as defined by the manufacturer's instructions. Standby mode for an appliance is the power (wattage) consumed after it has been automatically or manually placed in Standby mode and allowed to stabilize. Standby mode may persist for an indefinite period of time. Standby mode may allow activation of other modes by local or remote switch.
Standby Mode includes continuous subsidiary functions such as:
1. Continuous time of day displays at the lowest power state selectable by the user;
2. Power required to perform two-way consumer convenience remote control operation;
3. Sensor maintenance power (keeping sensors warm) at the lowest power state selectable by the user;
4. Low voltage power supplies for controls, switches, memories and clocks.
Active Mode
Active mode describes the state of an appliance when it is connected to the main electricity supply and is providing
Active Mode includes:
1. Washing or drying clothing; heating, cooking or warming food; heating or cooling air; heating or cooling water; cleaning, drying, or warming dishes; disposing of food; compacting trash; dehumidifying, vacuuming, brewing coffee, ironing clothes, toasting bread, or any other traditional task expected of a home appliance.
2. Preparing to start a cycle or appliance program while in a delay start or a timed control format when required;
3. Waiting for a resume signal when in a “pause” mode in the midst of a program or cycle;
4. Receiving or searching for signals from power or utilities companies as part of an energy management or demand management system;
5. Cycling heaters or other components based upon input from time, temperature, or other internal, or external control sensors;
6. Maintaining a temperature or condition;
7. Providing lighting, or ventilation when required by the consumer or as a result of an action. [This includes night lights, over the range (over-the-range) microwave oven lights, dryer drum lights, etc.]
8. Continuous protective (safety) functions (e.g. water leakage detectors).
9. Actively completing safety or reliability functions such as removing residual heat from controls or ovens, automatic fans used to protect over-the-range microwave ovens from cooktop heat, cleaning filters, etc. [These functions are considered active in that they are a result of the requirements placed upon the appliance by the consumer.]
(AHAM, No. 8 at pp. 5-6)
The Joint Comment supported DOE's proposal in the October 2008 TP NOPR to use the EPCA definitions of active mode, off mode, and standby mode for the microwave oven test procedure, noting that these definitions were enacted the previous year with the explicit support of AHAM and efficiency advocates, and opposed AHAM's proposed definitions and clarifications. The Joint Comment stated that the revisions proposed by AHAM constitute a significant re-write of the statutory scheme, with an apparent bias toward redefining standby functions as off mode functions or active mode functions. (Joint Comment, No. 11 at pp. 2-3) According to the Joint Comment:
1. An LED display light and the power drawn to enable a remote control device to turn the product off are both standby functions rather than off mode functions.
2. The components of a protective function, such as controlling electronic noise, fall within the statutory definition of standby mode, rather than off mode.
3. The continuous protective functions and the search for utility demand management signals to resume activity, both proposed by AHAM as active mode functions, are more properly considered standby functions under the statute.
The Joint Comment stated that designating power consuming activities as off mode rather than standby mode for reasons of harmonization is problematic in this rulemaking because DOE has proposed an efficiency standard for microwave oven standby power without concurrently proposing a standard for off mode power. The Joint Comment also stated that the lack of an off mode efficiency standard invites gaming the standby standard, a process that it believes will gain significant traction if the AHAM recommendations for modified definitions are accepted. The Joint Comment also stated that AHAM's language qualifying that the continuous time of day displays and sensor maintenance power should be measured at the lowest power state selectable by the user is not required by statute and should not be accepted by DOE. (Joint Comment, No. 11 at pp. 3-4)
In response to the Joint Comment as it relates to the test procedure rulemaking and as discussed in section I, after the October 2008 TP NOPR was published, DOE determined it appropriate to consider IEC Standard 62301 Second Edition in developing the test procedure for standby and off mode. DOE anticipated, based on review of drafts of the updated IEC Standard 62301, that the revisions could include different mode definitions. At that time, the revised standard was expected in July 2009. Later, however, DOE received information that IEC Standard 62301 Second Edition would not be available until late 2010. As a result, DOE decided to publish today's SNOPR to consider the new mode definitions from the latest draft version, IEC Standard 62301 CDV.
DOE believes the definitions of standby mode, off mode, and active mode provided in IEC Standard 62301 CDV expand upon the EPCA mode definitions and provide additional guidance as to what functions are associated with each mode. DOE also believes that the comments received by IEC on IEC Standard 62301 CD2, and the resulting amended mode definitions proposed in IEC Standard 62301 CDV, demonstrate significant participation of interested parties in the development of the best possible definitions. For these reasons, in today's SNOPR DOE is proposing definitions of standby mode, off mode, and active mode based on the definitions provided in IEC Standard 62301 CDV. DOE believes that the mode definitions in the draft versions of IEC Standard 62301 Second Edition represent a substantial improvement over those in IEC Standard 62301, and represent the best available definitions at this time as confirmed by the review and inputs from interested parties as part of the IEC rulemaking process. For the reasons discussed in section III.A, DOE believes that the proposed definitions of standby, off, and active mode in today's SNOPR would be applied to microwave-only units, microwave ovens with thermal elements only, and combination microwave ovens. DOE will address standards for standby mode and off mode energy use in a separate energy conservation standards rulemaking, as discussed in section I.
DOE is proposing in today's SNOPR to define “standby mode” as the condition in which an energy-using product is connected to a mains power source and offers one or more of the following user oriented or protective functions which may persist for an indefinite time:
DOE is proposing an additional clarification for standby mode that continuous clock functions include a timer that operates continuously, provides regular scheduled tasks (
DOE is proposing to define off mode as the condition in which the energy-using product is connected to a mains power source, is not providing any active or standby mode function, and may persist for an indefinite time.
Under this proposed definition, an energized LED or other indication that shows the user only that the product is in the off position would be considered part of off mode, provided that no other standby or active mode functions are energized. However, if any energy is consumed by the appliance in the presence of a one-way remote control, the unit would be considered to be operating in standby mode because the remote control would be used to deactivate other mode(s). Electrical leakage and any energy consumed for electrical noise reduction, which are not specifically categorized as standby power functions, would be indicative of off mode.
Whirlpool commented that the addition of off mode to the proposed rule is necessary to ensure that all power consumption is properly accounted for (Whirlpool, No. 10 at p. 2), and questioned the need to differentiate between an electromechanical control versus a manual operation that puts the microwave oven into off mode, because power may not be consumed by either option. (Whirlpool, Public Meeting Transcript, No. 7 at pp. 57-58) PG&E noted that there may be some small power demand in the off mode, and commented that if the power demand were zero because the electromechanical control was receiving no power, then the appliance would technically be in the disconnected mode and not the off mode. PG&E subsequently noted that there is no clear distinction between off mode and disconnected mode, especially in situations where a device is equipped with a manual on/off switch. (PG&E, Public Meeting Transcript, Notice, No. 7 at pp. 58-59)
ASAP stated that DOE's definition of off-mode is stretching the interpretation of the statutory language, and did not agree that zero power (
The Joint Comment further stated that the October 2008 TP NOPR erred in stating that a microwave oven with a manual power on/off switch would not be in off mode when the switch was in the off position because the switch's physical gap to the main power supply has interrupted the electrical connection. The Joint Comment asserted that this interpretation is not required by law, which only refers to a product “connected to a main power source”, and term “connected” should be satisfied by the product being plugged into a power source. (Joint Comment, No. 11 at p. 2) The Joint Comment noted that the significance of distinguishing the off mode is limited in the test procedure rulemaking, but more important in the efficiency standard rulemakings that address off mode. The Joint Comment also stated that products with hard-off switches should be accounted for in the off mode condition, and such a design option would allow consumers to reduce energy use and increase their overall energy savings. According to the Joint Comment, DOE's “mischaracterization” of the off-mode definition will discourage manufacturers from reintroducing mechanical switches that could reduce or eliminate off-mode power consumption from their products. (Joint Comment, No. 11 at p. 3)
DOE examined the issue of how to classify a microwave oven that is plugged in to the main power supply but is not consuming energy due to the presence of an on/off switch. DOE first reviewed the discussion provided in annex A of IEC Standard 62301 CDV; according to section A.2, disconnected mode is included as a mode definition because many products are removed by users from mains power sources for substantial periods of time. DOE interprets this condition to refer to the power cord being unplugged from the power source. Section A.2 further states that “[a] product may have several off modes or it may have no off mode. Switches on products that are labeled as power, on/off or standby may not reflect the mode classification based on the actual functions active in that mode.” Although this statement does not definitively establish a means by which to treat the presence of a power or on/off switch, DOE infers it to mean that products equipped with such switches can operate in off or standby mode(s), depending on what components may remain energized with the switch in the “off” position. However, this discussion is silent on whether activation of an on/off switch can place the product in disconnected mode. Considering section A.2 in total, DOE concludes that disconnected mode for microwave ovens would be associated only with the removal of the power cord from the power source. Based on this review and acknowledging that classification of an on/off switch as operating in off mode in the absence of other energy use associated with standby mode would encourage manufacturers to provide such an energy-saving feature, DOE revises its determination proposed in the October 2008 TP NOPR and tentatively concludes that zero energy consumption due to activation of an on/off switch would be indicative of off mode rather than a disconnected mode.
In response to ASAPs question of whether testing would be required for a device with off mode capability even though there is no reporting requirement or standard, DOE notes, as discussed in section III.B, that any representations as to the standby and off
Finally, DOE is proposing to define active mode as the condition in which the energy-using product “is connected to a mains power source, has been activated, and provides one or more main functions,” with the additional clarification that “delay start mode is a one off user initiated short duration function that is associated with an active mode.” DOE notes that IEC Standard 62301 CD2 provided additional clarification that “delay start mode is a one off user initiated short duration function that is associated with an active mode.” IEC Standard 62301 CDV eliminated this clarification; however, in response to comments on IEC Standard 62301 CD2 that led to IEC Standard 62301 CDV, IEC stated that delay start mode is a “one-off” function of limited duration, which suggests that IEC does not consider it as part of standby mode although no conclusion is made as to whether it would be considered part of active mode.
DOE is tentatively proposing to consider delay start mode as part of active mode because it is a condition of finite duration that is user-initiated and uniquely associated with a cooking cycle. DOE determined that cooking or warming of food would be considered active mode functions as well. DOE does not believe that it has sufficient information on the remainder of the conditions specified by AHAM as part of active mode for microwave ovens to determine whether the conditions should be classified as such under the proposed definition of active mode. However, DOE believes that many of these functions may not persist for an indefinite time and, therefore, would not be considered part of standby mode or off mode. DOE invites information and comments on specific functions that would be associated with microwave oven active mode.
DOE also notes that section 3.9 of IEC Standard 62301 CDV defines disconnected mode, as “the status in which all connections to mains power sources of the energy using product are removed or interrupted.” IEC Standard 62301 CDV also adds a note that common terms such as “unplugged” or “cut off from mains” also describe this mode, and that this mode is not part of the low power mode category. DOE believes that there would be no energy use in a “disconnected mode,” and therefore is not proposing a definition or testing methods for such a mode in the DOE test procedure for microwave ovens.
DOE noted in the October 2008 TP NOPR that, because IEC Standard 62301 is written to provide a certain degree of flexibility so that the test standard can be used to measure standby mode and off mode power for most household electrical appliances (including microwave ovens), it does not specify the test method for measuring the power consumption in cases in which the measured power is not stable. Section 5.3.2 of IEC Standard 62301 states that “[i]f the power varies over a cycle (
AHAM and Whirlpool agreed with DOE's conclusion that a 12-hour test period would measure all possible configurations for a 12-hour clock, but commented that such an approach is impractical and costly and would be a constraint on resources, including laboratory space and time. (Whirlpool, Public Meeting Transcript, No. 7 at pp. 70-71; AHAM, Public Meeting Transcript, No. 7 at pp. 69-70) Whirlpool commented that running a 12-hour test would be a huge drain on facilities and would require substantial investment to expand those facilities, adding that their testing is done on the production line in order to assure product quality. (Whirlpool, Public Meeting Transcript, No. 7 at pp. 70-71) AHAM and Whirlpool commented that the test period of 12 hours ± 30 seconds should only apply to displays where the power consumption varies within the number of segments lit, such as LEDs. (Whirlpool, No. 10 at p. 3; AHAM, No. 8 at p. 3) ASAP also questioned if the 12-hour test would be required for all units, or whether it would just be for units with LED displays. (ASAP, Public Meeting Transcript, No. 7 at pp. 74-45) ASAP requested responses from manufacturers about the difficulty in obtaining a representative standby power measurement due to the clock start time, and asked if it is possible to use a shorter interval that could be multiplied to obtain the equivalent of a 12-hour measurement. (ASAP, Public Meeting Transcript, No. 7 at p. 72)
AHAM and Whirlpool also disagreed with DOE's statement that the proposed test procedure “obviates the need for a specific starting time, which could not be ensured for microwave ovens that have an automatic power-down feature.” AHAM and Whirlpool commented that IEC Standard 62301 states that a product's standby power should be measured in its low power state, so if a display powers down, then the microwave oven should be allowed to stabilize until the unit powers down, and then standby power is measured. AHAM and Whirlpool stated that the benefit of a 12-hour test is unclear, as there is no need to capture power usage during the power down mode. (AHAM, No. 8 at p. 3; Whirlpool, No. 10 at p. 4) AHAM also commented that if a microwave oven powers down, the display would no longer be powered, so the starting clock time does not matter. (AHAM, Public Meeting Transcript, No. 7 at p. 69)
The Joint Comment responded to AHAM's comments, stating that since there is no assurance regarding the length of time a unit with power down capability might require to power down to a stable state, the Joint Comment supports DOE's approach of a 12-hour test period, which would more realistically capture standby energy use by measuring the energy consumed in standby both before and after the device powers down. The Joint Comment also stated that it is open to considering a shorter test cycle as long as comparative testing shows that energy use is the same. Absent such testing, The Joint Comment supports DOE's proposal for a 12 hour ± 30 second test period where the unit's power consumption is not stable. (Joint Comment, No. 11 at p. 4)
Whirlpool and AHAM stated that the number of segments of 7-segment LEDs lit over 12 hours can be averaged, and there are 10-minute periods that are representative of the 12-hour cycle, which DOE should consider using instead of the 12-hour cycle. Whirlpool added that using these 10-minute periods would yield the same results as taking a 12-hour average, but would be much faster. (Whirlpool, Public Meeting Transcript, No. 7 at pp. 72-73; AHAM, Public Meeting Transcript, No. 7 at p. 69) GE supported a 10-minute test for establishing a baseline, and agreed that a 12-hour test of three of each model is
If the appliance has a clock that is displayed in Standby Mode and the clock does not result in any power fluctuations, standby power will be measured for at least 10 minutes. If the appliance has a clock that is displayed in Standby Mode and changes in the display segments affects the power measurements, the clock will be set to allow the testing to begin at 3:33 and the unit stabilized as specified above. Average or accumulated energy (based on Section 5.3.2 of IEC 62301 2007 CD2, see below) will be measured from 3:33 through 3:42 (10 full minutes) following the general conditions for measurement outlined in Section 4 of IEC 62301 Ed.2 CD2. This specific 10 minute interval provides the same average number of display segments as a 12-hour measurement period (14.6). (AHAM, No. 8 at p. 3; Whirlpool, No. 10 at p. 4)
ASAP suggested setting the clock at 1:11 for the standby power test. (ASAP, Public Meeting Transcript, No. 7 at p. 68) As noted above, the Joint Comment stated that it is open to considering a shorter test cycle as long as comparative testing shows that energy use is the same, and absent such testing, the Joint Comment supports DOE's proposal for a 12 hour ± 30 second test period where the unit's power consumption is not stable. (Joint Comment, No. 11 at p. 4)
DOE investigated tests method to determine standby power over a shorter period than 12 hours. DOE first evaluated using 18 different clock display times to produce a standby power measurement representative of a 12-hour cycle, as discussed in appendix 5B of the November 2007 ANOPR technical support document (TSD). Using this method, the standby power consumption and line voltage are measured as the clock is cycled through all the possible digit combinations (in terms of active elements) and then a regression analysis is performed to quantify the impact of the number of lit elements (by digit) and voltage on power consumption. The results were then integrated across the number of minutes that each active element combination is “on” through the course of the 12 hours. As noted in chapter 5 of the November 2007 ANOPR TSD, the results for average standby power consumption using the methodology described above produced results that were within 1 to 2 percent of the 12 hour test results.
For this SNOPR, DOE also investigated whether a single 10-minute measurement period with a starting clock time of 3:33, as suggested by AHAM and Whirlpool, would be a reasonable proxy for the 12-hour standby power measurement in the event that power consumption is not stable. DOE analysis indicates that the proportion of time that each possible number of segments in a 7-segment LED display that are lit over the 10-minute time period from 3:33 to 3:42 is representative of the distribution of lit segments over a 12-hour period with an arbitrary starting time. This suggests that the 10-minute test period starting at 3:33 would produce average standby power measurements that are comparable to average standby power measured over 12 hours. Table 1 shows the comparison of average standby power measured for 11 units in DOE's microwave oven test sample using the 18-point, and 10-minute methodologies as compared to the 12-hour test.
Within DOE's limited test sample, the average standby power measured over the specified 10-minute test period agrees within 2 percent with average standby power measured over 12 hours. Therefore, DOE tentatively concludes that a 10-minute measurement period with a starting time of 3:33 provides a valid measure of standby energy use for those microwave ovens with power consumption varying according to the time displayed on the clock. DOE proposes in today's SNOPR to specify that, for microwave ovens for which standby power consumption is not stable, the clock display shall be set at 3:33 at the conclusion of the stabilization period and the test period shall be 10 minutes.
DOE recognizes that both the 18-point and 10-minute approaches for accelerated standby testing offer the possibility that a microwave oven could be programmed to alter its behavior when such a test is detected in order to minimize measured standby power consumption. For example, a microwave oven could be programmed to turn off its cooking sensors and/or dim its display only during the display times associated with the 18 measurement points or between display times 3:33 and 3:42.
DOE notes that the microwave oven test procedure is designed to provide a measurement consistent with representative average consumer use of the product, even if the test conditions and/or procedures may not themselves all be representative of average consumer use (
DOE seeks comment on this proposed language to address products equipped with controls or other features that modify the operation of energy-using components during testing. The language does not identify specific product characteristics that could make the test procedure unsuitable for testing certain products (
Regarding test burden, DOE believes that the number of units to be tested according to the sampling requirements in 10 CFR 430.24(i) is reasonable and, with a 5-minute stabilization period and a 5-minute or 10-minute test time depending on whether the standby power consumption is stable, would not substantially add to manufacturer test burden and would allow manufacturers that conduct testing on the production line in order to assure product quality to continue to do so.
DOE proposed in the October 2008 TP NOPR to change the value of a conversion factor, used in the microwave oven active mode calculations to correct an erroneous value. 73 FR 62134, 62141-42 (Oct. 17, 2008). AHAM and Whirlpool supported DOE's proposed technical correction to the conversion factor. (AHAM, No. 8 at p. 4; Whirlpool, No. 10 at p. 4) Because the active mode provisions were removed from the microwave oven test procedure in the final rule published elsewhere in today's
Section 323(b)(3) of EPCA requires that test procedures shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use. Test procedures must also not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
DOE stated in the October 2008 TP NOPR that it believes that the incorporation of clauses regarding test conditions and methods in IEC Standard 62301, along with the modifications described above, would satisfy this requirement. DOE also noted that the proposed amendments to the DOE test procedure incorporate a test standard that is widely used and accepted internationally to measure standby power in standby mode and off mode. Based on DOE testing and analysis of IEC Standard 62301, DOE determined in the October 2008 TP NOPR that the proposed amendments to the microwave oven test procedure produce standby mode and off mode average power consumption measurements that represent an average use cycle both for cases in which the measured power is stable and when the measured power is unstable (
For similar reasons to those stated above, the proposed amendments in today's SNOPR to measure the standby and off mode power consumption of microwave ovens would also not require manufacturers to make major investments in test facilities and new equipment and would not be unduly burdensome to conduct. In addition, today's SNOPR proposes a significantly shorter test duration than the 12 hours that was proposed in the October 2008 TP NOPR.
Today's regulatory action is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).
The Regulatory Flexibility Act (5 U.S.C. 601
In conducting this review, DOE first determined the potential number of affected small entities. The Small Business Administration (SBA) considers an entity to be a small business if, together with its affiliates, it
For these reasons, DOE tentatively concludes and certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE seeks comment on this certification and will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) which has been approved by OMB under control number 1910-1400. Public reporting burden for compliance reporting for energy and water conservation standards is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to DOE (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this proposed rule, DOE proposes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for microwave ovens. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. 64 FR 43255 (August 4, 1999). The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States, and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process that it will follow in developing such regulations. 65 FR 13735. DOE examined this proposed rule and determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to the test procedures that are the subject of today's proposed rule. States can petition DOE for a waiver of such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Executive Order 13132 requires no further action.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the following: (1) The preemptive effect, if any; (2) any effect on existing Federal law or regulation; (3) a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) the retroactive effect, if any; (5) definitions of key terms; and (6) other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. Today's proposed rule would have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's SNOPR and concluded that it is consistent with applicable policies in the OMB and DOE guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA a Statement of Energy Effects for any proposed significant energy action. The definition of a “significant energy action” is any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the proposal were to be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of OIRA also did not designate the proposed rule as a significant energy action. Therefore, it is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the DOE Organization Act (Pub. L. 95-91), DOE must comply with section 32 of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as amended by the Federal Energy Administration Authorization Act of 1977 (FEAA; Pub. L. 95-70) (15 U.S.C. 788). Section 32 essentially provides that, where a proposed rule authorizes or requires use of commercial standards, the rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The proposed rule incorporates testing methods contained in sections 4 and 5 of the commercial standard, IEC Standard 62301. DOE has evaluated this standard and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA,
The time, date, and location of the public meeting are listed in the
Anyone who has an interest in today's notice, or who represents a group or class of persons with an interest in these issues, may request an opportunity to make an oral presentation at the public meeting. Such persons may hand-deliver requests to speak to the address shown in the
DOE requests persons selected to be heard to submit an advance copy of their statements at least one week before the public meeting. DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Program. Requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.
DOE will conduct the public meeting in an informal conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements. At the end of all prepared statements on each specific topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others.
Participants should be prepared to answer DOE's and other participants' questions. DOE representatives may also ask participants about other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending if time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
DOE will make the entire record of this proposed rulemaking, including the transcript from the public meeting, available for inspection at the U.S. Department of Energy, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC 20024, (202) 586-9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Copies of the transcript are available for purchase from the transcribing reporter.
DOE will accept comments, data, and information regarding the proposed rule before or after the public meeting, but no later than the date provided at the beginning of this SNOPR. Comments, data, and information submitted to DOE's e-mail address for this rulemaking should be provided in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. Interested parties should avoid the use of special characters or any form of encryption, and wherever possible comments should include the electronic signature of the author. Comments, data, and information submitted to DOE via mail or hand delivery should include one signed original paper copy. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document that includes all of the information believed to be confidential, and one copy of the document with that information deleted. DOE will make its own determination as to the confidential status of the information and treat it accordingly.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include the following: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information was previously made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
Although comments are welcome on all aspects of this rulemaking, DOE is particularly interested in receiving comments and views of interested parties on the following issues:
DOE invites comment on the proposal to clarify the definition of a “microwave oven” provided in 10 CFR 430.2 to cover microwave ovens with or without thermal elements designed for surface browning of food as well as combination microwave ovens (
DOE welcomes comment on test procedures and methods for the active mode cooking efficiency that address the concerns with repeatability and consistency of test results. DOE also welcomes consumer usage data on representative food loads, as well as data indicating how changes to the test load would affect the measured EF and on the repeatability of such test results. DOE will consider such information in its separate rulemaking to develop new methods of measuring microwave oven active mode cooking efficiency. (See section III.C.)
DOE invites comment on the adequacy of IEC Standard 62301 to measure standby mode and off mode power for microwave ovens in general, and on the suitability of incorporating into DOE regulations the specific provisions described in section III.D.
DOE seeks comment on its proposed definitions of standby mode, off mode, and active mode, which are based on the language in IEC Standard 62301 CDV. DOE also seeks comment on specific functions that would be classified as standby, off, and active modes. (See section III.E.)
DOE seeks comment on its proposed clarification to IEC Standard 62301, in which DOE specifies a test period of 10 minutes with an initial clock display time of 3:33 for microwave ovens for which the measured power is not stable, and the test burden associated with such testing requirements. (See section III.F.)
DOE seeks comment on the proposed language requiring petition for waivers to address products equipped with controls or other features that modify the operation of energy using components during the energy test. DOE seeks comment on whether more specific definition could or should be provided to define either the product characteristics that would make the test procedure unsuitable for use or to define representative average use. (See section III.F.)
The Assistant Secretary of DOE's Office of Energy Efficiency and Renewable Energy has approved publication of today's Supplemental Notice of Proposed Rulemaking.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental Relations, Small businesses.
For the reasons stated in the preamble, DOE proposes to amend part 430 of chapter II of title 10, Code of Federal Regulations, to read as set forth below:
1. The authority citation for part 430 continues to read as follows:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
2. Section 430.2 is amended by revising the definition for “Microwave oven” to read as follows:
3. Section 430.23 is amended by adding paragraph (i)(13) to read as follows:
(i) * * *
(13) The energy test procedure is designed to provide a measurement consistent with representative average consumer use of the product, even if the test conditions and/or procedures may not themselves all be representative of average consumer use (
4. Appendix I to Subpart B of Part 430 is amended:
a. By adding a note after the heading;
b. In section 1.
1. Redesignating sections 1.1 through 1.4 as sections 1.2 through 1.5;
2. Redesignating section 1.5 as section 1.7;
3. Redesignating sections 1.6 through 1.8 as sections 1.9 through 1.11;
4. Redesignating sections 1.9 and 1.10 as sections 1.14 and 1.13, respectively;
5. Adding new sections 1.1, 1.6, 1.8, and 1.12;
c. In section 2.
1. Revising sections 2.1.3, 2.2.1, 2.5, and 2.6;
2. Adding new sections 2.2.1.1, 2.2.1.2, and 2.9.1.3; and
d. In section 3.
The additions and revisions read as follows:
Note: All representations related to standby mode and off mode energy consumption of microwave ovens made after [DATE 180 DAYS AFTER DATE OF PUBLICATION OF THE TEST PROCEDURE FINAL RULE IN THE FEDERAL REGISTER] must be based on results generated under this test procedure (
1.1
1.6
1.8
1.12
2.1.3
2.2.1
2.2.1.1
2.2.1.2
2.5
2.6
2.9.1.3
3.1
3.1.1
3.1.1.1
3.1.2
3.1.3
3.1.3.1
3.2.3
3.3.13 Record the average standby mode power, P
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Lancaster, NH, to accommodate a new Area Navigation (RNAV) Global Positioning System (GPS) Special Standard Instrument Approach Procedure (SIAP) serving the Weeks Medical Center. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations within the National Airspace System.
Comments must be received on or before September 7, 2010.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2010-0323; Airspace Docket No. 10-ANE-106, at the beginning of your comments. You may also submit and review received comments through the Internet at
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing
Communications should identify both docket numbers (FAA Docket No. FAA-2010-0323; Airspace Docket No. 10-ANE-106) and be submitted in triplicate to the Docket Management System (
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-0323; Airspace Docket No. 10-ANE-106.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Lancaster, NH to provide controlled airspace required to support the special SIAPs for Weeks Medical Center. The existing Class E airspace extending upward from 1,200 feet above the surface would be modified for the safety and management of IFR operations by lowering the base of controlled airspace to 700 feet above the surface.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9T, signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Weeks Medical Center, Lancaster, NH.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
1. The authority citation for Part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9T, Airspace Designations and Reporting Points, signed August 27, 2009, effective September 15, 2009, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6-mile radius of the Point in Space Coordinates (lat. 44°29′33″ N., long. 71°34′41″ W.) serving the Weeks Medical Center.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E Airspace at Wolfeboro, NH, to accommodate a new Area Navigation (RNAV) Global Positioning System (GPS) Special Standard
Comments must be received on or before September 7, 2010.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey, SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2010-0321; Airspace Docket No. 10-ANE-104, at the beginning of your comments. You may also submit and review received comments through the Internet at
Richard Horrocks, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-5588.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2010-0321; Airspace Docket No. 10-ANE-104) and be submitted in triplicate to the Docket Management System (see
Comments wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2010-0321; Airspace Docket No. 10-ANE-104.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Wolfeboro, NH to provide controlled airspace required to support the special SIAPs for Huggins Hospital. The existing Class E airspace extending upward from 1,200 feet above the surface would be modified for the safety and management of IFR operations by lowering the base of the controlled airspace to 700 feet above the surface.
Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9T, signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in subtitle VII, part, A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Huggins Hospital, Wolfeboro, NH.
Airspace, Incorporation by reference, Navigation (Air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
1. The authority citation for part 71 continues to read as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9T, Airspace Designations and Reporting Points, signed August 27, 2009, effective September 15, 2009, is amended as follows:
That airspace extending upward from 700 feet above the surface within a 6-mile radius of the Point in Space Coordinates (lat. 43°35′15″ N., long. 71°11′19″ W.) serving the Huggins Hospital.
Commodity Futures Trading Commission.
Notice of proposed rulemaking.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is proposing a rule that would establish standards for recovery and resumption of trading and clearing operations by designated contract markets (“DCMs”) and registered derivatives clearing organizations (“DCOs”) that the Commission determines to be critical financial markets or core clearing and settlement organizations in the event of a wide-scale disruption affecting such entities' trading or clearing operations. These proposed standards would require such entities to maintain business continuity and disaster recovery resources sufficient to meet a same-day recovery time objective for trading and clearing, and maintain geographic dispersal of infrastructure and personnel sufficient to enable achievement of a same-day recovery time objective, in the event of a wide-scale disruption. The proposed amendments also revise application guidance and acceptable practices under the Core Principles for DCMs relating to business continuity and disaster recovery matters that would harmonize acceptable practices for DCMs and DCOs.
Comments must be received on or before August 23, 2010.
Comments should be sent to David Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Comments may be submitted via e-mail at
Robert B. Wasserman, Associate Director, Division of Clearing and Intermediary Oversight, 202-418-5092,
While the experience of the Commission is that DCMs and DCOs registered with it maintain adequate business continuity and disaster recovery (“BC-DR”) programs, the Commission believes that additional regulatory steps should be taken to further improve the resiliency and recovery capabilities of registered entities, particularly those organizations which meet the financial sector's accepted definitions of “critical financial markets” and “core clearing and settlement organizations.”
The White Paper explained that critical financial markets are those markets that provide the means for financial institutions to adjust their cash and securities positions and those of their customers in order to manage liquidity, market, and other risks to their organizations, and provide support for the provision of a wide range of financial services to U.S. businesses and consumers. The White Paper defined “critical financial markets” as “markets for [(1)] federal funds, foreign exchange, and commercial paper; [(2)] U.S. government and agency securities; and [(3)] corporate debt and equity securities.”
The Commission believes that some of the registered entities regulated by the Commission may be “critical financial markets” or “core clearing and settlement organizations.” They provide the means for financial institutions to adjust their financial positions and those of their customers in order to manage liquidity, market, and other risks, and provide support for provision of a wide range of financial services to U.S. businesses and consumers. Their products include futures on U.S. government and agency securities, equity indexes, foreign exchange and physical commodities that comprise critical components of the world financial system. For these reasons, it might present unacceptable risks to the U.S. financial system if these entities were to become inoperative and unavailable for an extended period of time for any reason up to and including a wide-scale disruption. The ability of critical financial markets and core clearing and settlement organizations to recover and resume trading and clearing promptly in the event of a wide-scale
The White Paper calls for core clearing and settlement organizations to have the capacity to meet a same-day recovery time objective (“RTO”); that is, the capacity to recover and resume clearing and settlement activities within the business day on which the disruption occurs.
While the White Paper defines critical financial markets, it establishes an RTO only for core clearing and settlement organizations. The
The Commodity Exchange Act (“CEA” or “Act”) provides for the protection of the “public interest” through a system of effective self-regulation of trading facilities, clearing systems and markets participants under Commission oversight. As specifically set forth in the Act, ensuring the integrity of the futures markets and the avoidance of systemic risk are critical functions of the Commission.
The BC-DR requirements currently applicable to DCMs are set forth in Core Principle 6,
With respect to DCMs, Core Principle 6,
With respect to DCOs, Core Principle I,
In the near-decade that has passed since the Act's Core Principles were established by the Commodity Futures Modernization Act of 2000 (“CFMA”),
The Commission believes that certain DCMs and DCOs may be critical financial markets or core clearing and settlement organizations. Some DCMs and DCOs provide the means for financial institutions to adjust their financial positions and those of their customers in order to manage liquidity, market, and other risks, and provide support for provision of a wide range of financial services to U.S. businesses and consumers. The available products include futures contracts and related options on U.S. government and agency securities, equity indexes, foreign exchange and physical commodities that comprise critical components of the world financial system. For these reasons, it might present unacceptable risks to the U.S. financial system if such DCMs or DCOs were to become inoperative and unavailable for an extended period of time for any reason up to and including a wide-scale disruption, and their ability to recover and resume trading and clearing promptly in the event of a wide-scale disruption may be critically important to the U.S. economy. Mitigating systemic risk through the application of consistent, same-day RTOs for clearing and settlement activities across the nation's critical financial markets in the event of a wide-scale disruption may be important to financial sector resiliency. Sufficient geographic dispersal of BC-DR resources, including both technology and personnel, is an essential means of ensuring that critical financial markets and core clearing and settlement organizations have the ability to recover and resume trading and clearing within a same-day RTO.
The Commission proposes amendments to Part 40 of its Regulations as follows: (1) The addition of new definitions in Regulation 40.1; (2) adoption of new Regulation 40.9 setting forth same-day RTO and geographic dispersal requirements for critical financial markets and core clearing and settlement organizations; and (3) the adoption of new Appendix E providing guidance regarding the Commission's determination of critical financial markets and core clearing and settlement organizations. The Commission also proposes to amend the application guidance provided in Appendix B to Part 38 and Appendix A to Part 39 of the Commission's regulations to incorporate the new Part 40 requirements.
Five new definitions are proposed to be added to Regulation 40.1. The terms defined include “critical financial market,” “core clearing and settlement organization,” “relevant area,” “recovery time objective,” and “wide-scale disruption.”
Proposed Regulation 40.1(j) would define “critical financial market” to mean a DCM that provides the means for financial institutions to adjust their financial positions and those of their customers in order to manage liquidity, market, and other risks to their organizations, and provides support for the provision of a wide range of financial services to businesses and consumers in the United States, particularly including markets whose trading impacts federal funds, foreign exchange, commercial paper, U.S. government and agency securities, corporate debt, equity securities, or physical commodities of broad, major importance to the national or international economy.
Proposed Regulation 40.1(k) would define “core clearing and settlement organization” as a DCO that provides clearing and settlement services integral to a critical financial market (or to multiple DCMs that are critical financial markets on a collective rather than individual basis).
Proposed Regulation 40.1(l) would define “relevant area,” for the purposes of Part 40, as the metropolitan or other geographic area within which a critical financial market or core clearing and settlement organization has physical infrastructure or personnel necessary for it to, as appropriate, (a) conduct electronic trading, (b) disseminate market data and provide price reporting, (c) conduct electronic surveillance and maintain access to audit trail information, or (d) conduct activities necessary to the clearance and settlement of existing and new contracts, including communities economically integrated with, adjacent to, or within normal commuting distance of that metropolitan or other geographic area.
Proposed Regulation 40.1(m) would define “recovery time objective” as the time period within which an entity should be able to achieve recovery and resumption of, as appropriate, (a) electronic trading, (b) market data dissemination and price reporting, (c) access to audit trail information and electronic surveillance tools, or (d) clearing and settlement of existing and new contracts, after those capabilities become temporarily inoperable for any reason up to or including a wide-scale disruption.
Proposed Regulation 40.1(n) would define “wide-scale disruption” to mean an event that causes a severe disruption or destruction of transportation, telecommunications, power, water, or other critical infrastructure components in a relevant area, or an event that results in the evacuation or unavailability of the population in a relevant area.
Proposed Regulation 40.9(a) would require any registered entity that the Commission determines is a critical financial market or core clearing and settlement organization to maintain a disaster recovery plan and BC-DR resources, including infrastructure and personnel, sufficient to enable it to achieve a same-day RTO in the event of a wide-scale disruption affecting the relevant area of any of its normal-use trading or clearing operations.
Proposed Regulation 40.9(b) would provide that a same-day RTO is one calling for recovery and resumption of trading and clearing within the business day on which the disruption occurs.
Proposed Regulation 40.9(c) would set forth the minimal requirements for geographic dispersal of infrastructure and personnel needed to meet a same-day RTO. It would provide that infrastructure sufficient to enable a critical financial market or core clearing
Proposed Regulation 40.9(d) would require every registered entity that the Commission determines is a critical financial market or core clearing and settlement organization to conduct regular, periodic tests of its business continuity and disaster recovery plans and resources and its capacity to achieve a same-day RTO in the event of a wide-scale disruption.
New Appendix E to Part 40 would provide guidance on the process the Commission will follow, and the factors it will consider, to determine that a registered entity is a critical financial market or a core clearing and settlement organization. Appendix E would also describe the notice and opportunity for comment that the Commission would provide in this connection.
In connection with its proposal to adopt new Regulation 40.9, the Commission has also proposed conforming amendments to certain application guidance provisions of Commission Regulations relating to various Core Principles. Specifically, Appendix B to Part 38 and Appendix A to Part 39 are proposed to be amended to revise acceptable practices provisions under Core Principle 6 and Core Principle 9 in Part 38 and application guidance under Core Principle I in Part 39, to note that Proposed Regulation 40.9 would govern the obligations of registered entities that the Commission determines to be critical financial markets or core clearing and settlement organizations, with respect to maintenance and geographic dispersal of disaster recovery resources sufficient to meet a same-day RTO in the event of a wide-scale disruption. These proposed revisions would further note that, therefore, Proposed Regulation 40.9 itself would establish the application guidance and acceptable practices for core principle compliance relating to those matters set forth in Regulation 40.9.
As previously discussed, the Commission in this proposal would amend the acceptable practices provisions for Core Principle 9 set forth in Appendix B to Part 38, to harmonize the language of those provisions regarding BC-DR matters with the language of the parallel application guidance provisions for Core Principle I in Part 39. Moreover, the proposed revisions would also better explain the BC-DR standards currently applicable to DCMs. DCMs that have not been determined to be critical financial markets would be subject to the generally applicable BC-DR requirements set forth in these revisions, but would not be required to comply with the additional obligations imposed on critical markets by new Regulation 40.9. The Commission is aware that proposed legislation pending before Congress would amend the Act,
The Commission requests comment on a reasonable date for the proposed amendments to become effective.
The Commission requests comments on all aspects of the proposed rule amendments, including the question of what RTO (
The Regulatory Flexibility Act (“RFA”) requires that Federal agencies, in proposing rules, consider the impact of those rules on small businesses.
These proposed rule amendments will not impose any new recordkeeping or information collection requirements, or other collections of information that require approval of the Office of Management and Budget under the Paperwork Reduction Act.
Section 15(a) of the Act requires the Commission to consider the costs and benefits of its actions before issuing a
As discussed above, the proposed rule amendments would require DCMs and DCOs that the Commission determines to be critical financial markets or core clearing and settlement organizations to (1) maintain business continuity and disaster recovery resources sufficient to meet a same-day RTO for trading and clearing, and (2) maintain geographic dispersal of infrastructure and personnel sufficient to enable achievement of a same-day RTO in the event of a wide-scale disruption. The Commission cannot fully quantify the costs that would be borne by such entities in complying with the proposed rule amendments, as the Commission has not yet determined which entities are critical financial markets or core clearing or settlement organizations. Moreover, the cost to comply with the proposed rule amendments would be likely to vary depending on the nature and location of infrastructure and personnel available to enable achievement of a same-day RTO that are presently maintained by each such entity.
Notwithstanding the potential costs that could be incurred by DCMs or DCOs that the Commission determines to be critical financial markets or core clearing and settlement organizations in complying with the proposed rule amendments, the Commission believes the benefits of the proposed rule amendments are significant and important. The ability of critical financial markets and core clearing and settlement organizations to recover and resume trading and clearing promptly in the event of a wide-scale disruption is significant to the U.S. economy. Therefore, the proposed rule amendments may be crucially important to sound risk management practices for such markets, an area of concern that may deserve great weight in this connection. As such, they may be needed to protect market participants and ensure the continued efficiency, competitiveness, financial integrity, and price discovery function of such markets in the event of a wide-scale disruption. Accordingly, the Commission believes that the proposal is consistent with the Act and would serve to protect the public interest by promoting market integrity and the avoidance of systemic risk.
After considering the costs and benefits noted above, the Commission has determined to issue the proposed rule amendments. The Commission invites public comment on its application of the cost-benefit provision. Commenters are also invited to submit any data that they may have quantifying the costs and benefits of the proposed rule amendments with their comment letter.
Commodity futures, Reporting and recordkeeping requirements.
Commodity futures, Consumer protection, Reporting and recordkeeping requirements.
Commodity futures, Reporting and recordkeeping requirements.
In light of the foregoing, and pursuant to the authority in the Act, and in particular Sections 3, 5, 5c(a) and 8a(5) of the Act, the Commission hereby proposes to amend Parts 38, 39, and 40 of Title 17 of the Code of Federal Regulations as follows:
1. The authority citation for part 38 continues to read as follows:
7 U.S.C. 2, 5, 6, 6c, 7, 7a-2 and 12a, as amended by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
2. Amend Appendix B to Part 38 by revising paragraph (b) of Core Principle 6; and paragraph (a)(2) and paragraph (b) of Core Principle 9, to read as follows:
Core Principle 6 of section 5(d) of the Act:
(b)
(a) * * *
(2) The board of trade shall:
(i) Establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk, through the development of appropriate controls and procedures;
(ii) Establish and maintain a program of regular, periodic testing to ensure that all automated systems used by the board of trade function properly and have adequate security and capacity; and
(iii) Establish and maintain emergency procedures, backup facilities, a disaster recovery plan, and regular, periodic testing to ensure timely recovery and resumption of order processing and trade matching, market data dissemination and price reporting, market and trade practice surveillance, and maintenance of a comprehensive and accurate audit trail.
(b)
(2) In fulfilling its obligations set forth in the Application Guidance above with respect to its automated systems, the board of trade should follow the guidelines issued by the International Organization of Securities Commissions (“IOSCO”) in 1990 (the “IOSCO Principles”), and adopted by the Commission on November 21, 1990 (55 FR 48670), as supplemented and amended, and any similar guidelines issued by the Commission or its staff.
(3) Commission Regulation 40.9 governs the obligations of registered entities that the Commission has determined to be critical financial markets, with respect to maintenance and geographic dispersal of disaster recovery resources sufficient to meet a same-day recovery time objective in the event of a wide-scale disruption. Therefore, Regulation 40.9 itself establishes the guidance and acceptable practices for core principle compliance in that respect.
3. The authority citation for part 39 continues to read as follows:
7 U.S.C. 7b as added by Appendix E of Pub. L. 106-554, 114 Stat. 2763A-365.
4. Amend Appendix A to Part 39 by adding a new paragraph 3 after paragraph 2.b. of the guidance under Core Principle I, as follows:
2. * * *
b. * * *
3. Commission Regulation 40.9 governs the obligations of derivatives clearing organizations that the Commission determines to be core clearing and settlement organizations, with respect to maintenance and geographic dispersal of disaster recovery resources sufficient to meet a same-day recovery time objective in the event of a wide-scale disruption. Therefore, Regulation 40.9 itself establishes the guidance for core principle compliance in that respect.
5. The authority citation for part 40 continues to read as follows:
7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a, 8 and 12a, as amended by Title XIII of the Food, Conservation and Energy Act of 2008, Public Law No. 110-246, 122 Stat. 1624 (June 18, 2008).
6. Amend § 40.1 by adding paragraphs (j) through (n) to read as follows:
(j)
(k)
(l)
(m)
(n)
7. Add § 40.9 to read as follows:
(a) Each designated contract market or derivatives clearing organization that the Commission determines is a critical financial market or a core clearing and settlement organization must maintain a disaster recovery plan and business continuity and disaster recovery resources, including infrastructure and personnel, sufficient to enable it to achieve a same-day recovery time objective in the event that its normal trading or clearing and settlement capabilities become temporarily inoperable for any reason up to and including a wide-scale disruption.
(b) A same-day recovery time objective is a recovery time objective within the same business day on which normal trading or clearing and settlement capabilities become temporarily inoperable for any reason up to and including a wide-scale disruption.
(c) To ensure its ability to achieve a same-day recovery time objective in the event of a wide-scale disruption, each designated contract market or derivatives clearing organization that the Commission determines is a critical financial market or a core clearing and settlement organization must maintain a degree of geographic dispersal of both infrastructure and personnel such that:
(1) Infrastructure sufficient to enable the entity to meet a same-day recovery time objective after interruption of normal trading and clearing by a wide-scale disruption is located outside the relevant area of the infrastructure the entity normally relies upon to conduct electronic trading, disseminate market data and provide price reporting, conduct electronic surveillance and maintain access to audit trail information, or conduct activities necessary to the clearance and settlement of existing and new contracts, and does not rely on the same critical transportation, telecommunications, power, water, or other critical infrastructure components the entity normally relies upon for such activities; and
(2) Personnel sufficient to enable the entity to meet a same-day recovery time objective, after interruption of normal trading or clearing by a wide-scale disruption affecting the relevant area in which the personnel the entity normally relies upon to engage in such activities are located, live and work outside that relevant area.
(d) Each registered entity that the Commission determines is a critical financial market or core clearing and settlement organization must conduct
8. Add Appendix E to Part 40 to read as follows:
(a)
(2) The Commission will notify the designated contract market that it intends to undertake a determination with respect to whether it is a critical financial market. The entity may provide written data, views, and arguments relevant to the Commission's determination. Any such written data, views, and arguments shall be filed with the Secretary of the Commission, in the form and manner specified by the Commission, within 30 calendar days of receiving notice or within such other time specified by the Commission. After prompt consideration of all relevant information, the Commission will issue an order directly to the designated contract market explaining the Commission's determination of whether it is a critical financial market as defined by § 40.1(j).
(b)
(2) The Commission will notify the derivatives clearing organization that it intends to undertake a determination with respect to whether it is a core clearing and settlement organization. The entity may provide written data, views, and arguments relevant to the Commission's determination. Any such written data, views, and arguments shall be filed with the Secretary of the Commission, in the form and manner specified by the Commission, within 30 calendar days of receiving notice or within such other time specified by the Commission. After prompt consideration of all relevant information, the Commission will issue an order directly to the derivatives clearing organization explaining the Commission's determination of whether it is a core clearing and settlement organization as defined by § 40.1(k).
Social Security Administration.
Notice of proposed rulemaking.
We propose to revise the procedures for how claimants who request hearings before administrative law judges (ALJs) may seek further review of their fully favorable revised determinations based on prehearing case reviews or fully favorable attorney advisor decisions. We also propose to notify claimants who receive partially favorable determinations based on prehearing case reviews that an ALJ will still hold a hearing unless all parties to the hearing tell us in writing that we should dismiss the hearing requests. We expect that these changes will simplify the process and free up scarce administrative resources that we can better use to reduce the hearings level case backlog.
To ensure that your comments are considered, we must receive them no later than September 20, 2010.
You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2007-0092 so that we can associate your comments with the correct regulation:
1.
2.
3.
Comments are available for public viewing on the Federal eRulemaking portal at
Joshua Silverman, Office of Regulations, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 594-2128. 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
In most cases, we decide claims for benefits using an administrative review process that consists of four levels: Initial determination, reconsideration, hearing, and appeal. 20 CFR 404.900 and 416.1400. We make an initial determination at the first level. A claimant who is dissatisfied with the initial determination may request
We handle requests for ALJ hearings in several ways. Most claimants receive a decision from an ALJ.
At the ALJ hearing level, there are two other ways we may issue favorable determinations or decisions without holding hearings. A State agency or one of our components may issue a fully favorable revised determination under the prehearing case review process in 20 CFR 404.941 and 416.1441. An attorney advisor may issue a fully favorable decision under the attorney advisor process in 20 CFR 404.942 and 416.1442. These processes help us adjudicate cases pending at the hearing level more quickly while preserving claimants' right to a hearing before an ALJ.
The prehearing case review process allows us to refer a case back to the component that issued the determination under review. That component decides whether to revise its determination and issue a fully or partially favorable revised determination. We may conduct a prehearing case review if:
1. Additional evidence is submitted;
2. There is an indication that additional evidence is available;
3. There is a change in the law or regulations; or
4. There is an error in the file or some other indication that the prior determination may be revised.
20 CFR 404.941(b), 416.1441(b).
Our current regulations state that, if we issue a fully favorable revised determination, we notify the claimant and all other parties that the ALJ will dismiss the hearing request unless a party requests that the hearing proceed. The claimant or other party must make this request in writing within 30 days after the date we mail the notice of the revised determination.
If we issue a partially favorable revised determination, we notify the claimant and all other parties that we will continue with the ALJ hearing unless the claimant and all other parties agree to dismiss the hearing request. However, our current regulations do not specify how the claimant and all other parties must tell us that they agree to dismiss this hearing request.
Attorney advisors in our Office of Disability Adjudication and Review may conduct specific prehearing proceedings and, if appropriate, make fully favorable decisions based on the record. Attorney advisors may conduct prehearing proceedings under circumstances similar to those under which we conduct prehearing case reviews. 20 CFR 404.942(b) and 416.1442(b). If an attorney advisor issues a fully favorable decision, we wait 30 days before we dismiss the hearing request. We created the 30-day period to allow time for a claimant or other party to ask us to proceed with the hearing.
Our adjudicative experience shows that claimants who receive a fully favorable determination or decision rarely ask us to continue with a hearing. Our experience shows that claimants may become confused when they receive a notice dismissing their request for a hearing several weeks after they received a fully favorable determination or decision on their claim. As a result, we spend administrative resources: (1) Processing the dismissals of requests for hearing because we must wait until the 30-day period ends before we dismiss the request for hearing; (2) answering claimants' questions; and (3) explaining what the dismissal notice means.
We believe that changing our procedures would both simplify the process and free scarce administrative resources that we can better use to reduce the hearings level case backlog.
Therefore, we propose to revise the way claimants can obtain further review fully favorable and partially favorable prehearing case review determinations and fully favorable attorney advisor decisions. The proposed changes preserve a claimant's right to have an ALJ hearing, even when we have issued a fully favorable determination or decision under one of these processes.
As is our current policy, whenever a claimant or other party seeks further review of a favorable determination or decision, we consider the entire case record and determination or decision. Further review of a favorable determination or decision may result in a determination or decision that is less favorable or unfavorable to a claimant.
If we issue a fully favorable revised determination in the prehearing case review process, we propose that an ALJ will dismiss a request for a hearing soon after the reviewing component issues the fully favorable determination. The notice accompanying the ALJ's order of dismissal will advise all parties that they have 60 days from the date they receive the notice to request that the ALJ vacate the dismissal of the hearing request. The administrative law judge will extend the 60-day time limit if a party making a request shows that he or she had good cause for missing the deadline. If a party timely requests that the ALJ vacate the dismissal, the ALJ will vacate the dismissal, reinstate the request for a hearing, and offer all parties an opportunity for a hearing.
If we issue a partially favorable determination in the prehearing case review process, we propose that an ALJ will proceed to hold a hearing unless all parties to the hearing tell us in writing that they agree to dismiss the hearing request. If we receive a written statement(s) agreeing to a dismissal before an ALJ mails a notice of his or her decision, we will dismiss the request for a hearing.
We propose to include these changes in 20 CFR 404.941, 404.960, 416.1441, and 416.1460.
If an attorney advisor issues a fully favorable decision, we propose to consider the decision to be a hearing-level decision, and we will not issue a notice of dismissal of the hearing request. We propose that if a party to the hearing disagrees with the attorney advisor's decision for any reason, the
We propose to include these changes in 20 CFR 404.942 and 416.1442.
We propose to change “wholly favorable” to “fully favorable” in 20 CFR 404.941, 404.948, 416.1441, and 416.1448. We also propose to make additional changes for clarity in 20 CFR 404.948, 404.960, 416.1448, and 416.1460. These minor changes would make the language in these sections consistent with other related sections but would not alter their meaning.
Finally, if we issue these proposed rules as final rules, we will review and determine whether we need to revise Social Security Ruling 97-2p, which explains our current procedures for prehearing case reviews when new medical evidence is submitted.
Executive Order (E.O.) 12866 requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand.
For example:
• Would more, but shorter, sections be better?
• Are the requirements in the rules clearly stated?
• Have we organized the material to suit your needs?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
• Do the rules contain technical language or jargon that is not clear?
• Would a different format make the rules easier to understand, e.g., grouping and order of sections, use of headings, paragraphing?
We will not use these rules until we evaluate public comments and publish final rules in the
We consulted with the Office of Management and Budget (OMB) and determined that these proposed rules meet the criteria for a significant regulatory action under Executive Order 12866. Thus, OMB reviewed them.
We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities because they only affect individuals. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
These regulations impose no new reporting or recordkeeping requirements and are not subject to OMB clearance.
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).
For the reasons set forth in the preamble, we propose to amend title 20 of the Code of Federal Regulations part 404 subpart J and part 416 subpart N as set forth below:
1. The authority citation for subpart J of part 404 continues to read as follows:
Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
2. Amend § 404.941 by revising paragraphs (c), (d), and, (e) to read as follows:
(c)
(d)
(e)
3. Amend § 404.942 by revising paragraphs (d), (e) introductory text, (e)(1), and (f)(3) to read as follows:
(d)
(e)
(1) You or another party to the hearing submits a timely request that an administrative law judge reinstate the request for a hearing under paragraph (d) of this section;
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of this section subject to review by the Appeals Council if the Appeals Council decides to review the decision of the attorney advisor anytime within 60 days after the date of the decision under § 404.969.
4. Amend § 404.948 by revising the second sentence of paragraph (a), and paragraph (b)(1)(ii), to read as follows:
(a)
(b) * * *
(1) * * *
(ii) You live outside the United States, you do not inform us that you wish to appear, and there are no other parties who wish to appear.
5. Revise § 404.960 to read as follows:
(a) Except as provided in paragraph (b) of this section, an administrative law judge or the Appeals Council may vacate a dismissal of a request for a hearing if, within 60 days after the date you receive the dismissal notice, you request that we vacate the dismissal and show good cause why we should not have dismissed the request for a hearing. The Appeals Council may decide to vacate a dismissal on its own initiative within 60 days after we mail the notice of dismissal. The Appeals Council will inform you in writing if it vacates the dismissal.
(b) If an administrative law judge dismissed your request for a hearing because you received a fully favorable revised determination under the prehearing case review process in § 404.941, but you still wish to proceed with the hearing, then you must follow the procedure in § 404.941(d) to request that an administrative law judge vacate his or her order dismissing your request for a hearing.
6. The authority citation for subpart N of part 416 continues to read as follows:
Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
7. Amend § 416.1441 by revising paragraphs (c), (d), and, (e) to read as follows:
(c)
(d)
(e)
8. Amend § 416.1442 by revising paragraphs (d), (e) introductory text, (e)(1), and (f)(3) to read as follows:
(d)
(e)
(1) You or another party to the hearing submits a timely request that an administrative law judge reinstate the request for a hearing under paragraph (d) of this section;
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of this section subject to review by the Appeals Council if the Appeals Council decides to review the decision of the attorney advisor anytime within 60 days after the date of the decision under § 416.1469.
9. Amend § 416.1448 by revising the second sentence of paragraph (a), and paragraph (b)(1)(ii), to read as follows:
(a)
(b) * * *
(1) * * *
(ii) You live outside the United States, you do not inform us that you wish to appear, and there are no other parties who wish to appear.
10. Revise § 416.1460 to read as follows:
(a) Except as provided in paragraph (b) of this section, an administrative law judge or the Appeals Council may vacate a dismissal of a request for a hearing if, within 60 days after the date you receive the dismissal notice, you request that we vacate the dismissal and show good cause why we should not have dismissed the request for a hearing. The Appeals Council may decide to vacate a dismissal on its own initiative within 60 days after we mail the notice of dismissal. The Appeals Council will inform you in writing if it vacates the dismissal.
(b) If an administrative law judge dismissed your request for a hearing because you received a fully favorable revised determination under the prehearing case review process in § 416.1441, but you still wish to proceed with the hearing, then you must follow the procedure in § 416.1441(d) to request that an administrative law judge vacate his or her order dismissing your request for a hearing.
Federal Highway Administration (FHWA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
The FHWA solicits comments concerning the establishment of National Tunnel Inspection Standards (NTIS). The NTIS would set minimum tunnel inspection standards that apply to all tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways. The agency proposes modeling the NTIS after the existing National Bridge Inspection Standards (NBIS) as applicable. The NTIS would include requirements for inspection procedures for structural elements and functional systems, including mechanical, electrical, hydraulic and ventilation systems; qualifications for inspectors; inspection frequencies; and a National Tunnel Inventory (NTI).
Comments must be received on or before September 20, 2010. Late-filed comments will be considered to the extent practicable.
Mail or hand deliver comments to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, or submit electronically at
Mr. Jesus M. Rohena, P.E., Office of Bridge Technology, HIBT-10, (202) 366-4593, or Mr. Robert Black, Office of the Chief Counsel, HCC-30, (202) 366-1359, Federal Highway Administration, 1200 New Jersey Ave., SE., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Federal Docket Management System at
The safety and security of our Nation's tunnels are of paramount importance to the FHWA. Recognizing that tunnel owners are not mandated to inspect tunnels routinely and that inspection methods vary among entities that inspect tunnels, the FHWA and the Federal Transit Administration developed guidelines for the inspection of tunnels in 2003. The guidelines, known as the “Highway and Rail Transit Tunnel Inspection Manual,” (HRTTIM) were updated in 2005.
After investigating the fatal July 2006 suspended ceiling collapse in the Central Artery Tunnel in Boston,
The NTIS would implement these NTSB and IG recommendations. The FHWA proposes modeling the NTIS after the existing NBIS, located at 23 CFR 650, Subpart C. The agency proposes adding the NTIS under Subpart E of 23 CFR Part 650—Bridges, Structures, and Hydraulics.
The NTIS would require the proper safety inspection and evaluation of tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways. The NTIS are needed to ensure that all structural, mechanical, electrical, hydraulic and ventilation systems, and other major elements of our Nation's tunnels are inspected and tested on a regular basis. The NTIS would also ensure safety for the surface transportation users of our Nation's highway tunnels, and would make tunnel inspection standards consistent across the Nation. Additionally, tunnel inspections would help protect Federal investment in such key infrastructure.
Timely tunnel inspection is vital to uncovering safety problems and preventing failures. When corrosion or leakage occur, electrical or mechanical systems malfunction, or concrete cracking and spalling signs appear, they may be symptomatic of dire problems. The importance of tunnel inspection was demonstrated in the summer of 2007 in the I-70 Hanging Lake tunnel in Colorado when a ceiling and roof inspection uncovered a crack in the roof that was compromising the structural integrity of the tunnel. This discovery prompted the closure of the tunnel for several months for needed repairs. The repairs included removal of more than 30 feet of soil fill material from the top of the tunnel roof, temporary support of the roof from the inside of the tunnel, removal of the suspended ceiling, and the design and construction of a new slab cast on top of the existing roof to reinforce and add extra structural capacity. To accomplish the repair, the eastbound tube under the cracked roof was closed to traffic, and the adjacent westbound tube was converted to a tube with bi-directional traffic. Even though the eastbound tunnel was closed for 7 months, and the repair cost approximately $6 million, the repairs helped prevent a potential safety incident.
A preliminary tunnel survey conducted in 2003 suggests that there are approximately 350 highway tunnels in the Nation, although no comprehensive national inventory for tunnels currently exists. The FHWA additionally estimates that tunnels represent nearly 100 linear miles—approximately 517,000 linear feet—of Interstates, State routes, and local routes. Most of these tunnels range in age from 51 to 100 years, and some tunnels were constructed in the 1930s and 1940s. The FHWA anticipates that the NTIS would help create a national inventory of tunnels that would lead to a more accurate assessment of the number and condition of tunnels in the Nation.
Tunnels like the Central Artery tunnel in Massachusetts, the Lincoln Tunnel in New York, the Fort McHenry and the Baltimore Harbor tunnels in Maryland, just to mention a few, are a vital part of the national transportation infrastructure. These tunnels handle a huge volume of daily traffic. For example, according to the Port Authority of New York and New Jersey, the Lincoln Tunnel carries approximately 120,000 vehicles per day, making it the busiest vehicular tunnel in the world. The Fort McHenry Tunnel handles a daily traffic volume of more than 115,000 vehicles. Any disruption of traffic in these or other highly traveled tunnels would result in lost productivity. Because tunnels are vital to the local, regional, and national economies, and to our national defense, it is imperative that these facilities are properly maintained and inspected to ensure the safe passage of the traveling public and goods.
Currently, there is no uniformity with respect to how frequently tunnels are inspected. The frequency of tunnel inspections varies from daily to every 10 years. Some inspectors in colder climates walk through air ducts on a daily basis to identify potential icing problems due to water leakage. Some inspectors examine mechanical and electrical equipment on a daily basis, while others perform such inspections on a monthly basis. Under the proposed NTIS, State departments of transportation (State DOTs) and Federal agencies owning tunnels would be responsible for ensuring compliance with the NTIS for tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways. The proposed NTIS would require that these tunnels are inspected routinely, that the findings of such inspections are reported to the FHWA, and that deficiencies are corrected in a timely manner.
The FHWA issued an ANPRM on November 18, 2008, at 73 FR 68365, to solicit public comments regarding 14 categories of information related to tunnel inspections to help FHWA develop the NTIS. The FHWA received comments on the docket from 20 commenters, including: 9 State DOTs (Alaska, California, Massachusetts, Oregon, Ohio, Pennsylvania, New Jersey, Florida, and Washington); 1 metropolitan transit authority (Triborough Bridge and Tunnel Authority/Metropolitan Transit Authority Bridges and Tunnels (TBTA/MTA); 3 engineering consulting firms (United Technologies Corporation (UTC), Jacobs Associates, and PB Americas); 2 private citizens; and 4 organizations (American Society of Civil Engineers (ASCE), American Association of State Highway Transportation Officials (AASHTO), American Council of Engineering Companies (ACEC), and National Fire Protection Association (NFPA)). Additionally, in a letter to Secretary LaHood, Congressman Joseph Capuano of Massachusetts expressed support for the development of NTIS. Commenters overwhelmingly supported the development of NTIS and agree that FHWA should model the NTIS after the NBIS.
In the ANPRM, the FHWA proposed that the NTIS apply to all Federal-aid
In the ANPRM, FHWA asked several questions related to the definition of a “tunnel,” including what requirements the FHWA should incorporate into the definition of a “tunnel,” whether there should be a minimum length or other criteria required before a tunnel is subject to the NTIS, and whether the FHWA should adopt the AASHTO or NFPA tunnel definition. In general, most commenters expressed support for adoption of the AASHTO tunnel definition with modifications. Ohio DOT, PB Americas, TBTA/MTA, Jacobs Associates, ACEC, and ASCE commented that the tunnel definition should include a minimum length. PB Americas commented that the NTIS should adopt the AASHTO definition and add a length requirement of 800 feet. Jacobs Associates indicated that the agency should consider a minimum structure length-to-height ratio of three to define a tunnel. The ASCE expressed support for a minimum length of 20 feet. Ohio DOT and ACEC commented the NTIS should have a length requirement; however, they did not suggest a length. The NFPA commented that the definition of tunnel need not contain a minimum length; however, tunnels should be categorized by tunnel length. The AASHTO, New Jersey DOT, TBTA/MTA, Washington State DOT, and Pennsylvania DOT commented the NTIS should adopt the AASHTO definition of a tunnel. The ACEC asserted that the tunnel definition should include tunnels that have been created by a group of bridges, airtight structures, parking, or other facilities built close to each other.
In the ANPRM, FHWA asked if the proposed NTIS should adopt the inspection techniques and standards described in the HRTTIM. Most commenters agreed that the NTIS should either adopt or utilize the HRTTIM with respect to inspections and ratings. The ACEC asserted that the HRTTIM should be adopted, but with modifications. California DOT (Caltrans) commented that the HRTTIM needed significant modifications and, in particular, noted that the HRTTIM lacked guidance relative to the inspection of electrical and mechanical components and other functional systems. Accordingly, Caltrans proposed that the NTIS should consider States' existing inspection guidelines. Ohio DOT objected to the use of the HRTTIM, but offered no alternative suggestions.
The FHWA also asked whether additional sources of inspection standards should be considered. A number of commenters, including the ACEC, PB Americas, ASCE, AASHTO and others, recommended that the NTIS develop and require a more element-level-based rating system. Additionally, ASCE and Pennsylvania DOT recommended that the NTIS incorporate a tunnel sufficiency rating. The New Jersey DOT stated that for functional systems, owners should have the discretion to determine or establish the type of inspection and frequency. The AASHTO asserted that inspections should be routinely conducted at frequencies based on need, whereas in-depth inspections should be conducted as determined by the owner. Several commenters noted that risk-based inspection types and frequencies should be considered. The ASCE commented that a risk-based approach would address the inspection needs of geotechnical aspects of a tunnel. The Massachusetts Highway Department (MassHighways) and the ACEC noted that special inspections should be triggered based on findings from the routine inspection. MassHighways further noted that the actual type of inspection should be left to the owner's discretion, while the ACEC recommended yearly visual inspections and in-depth inspections on a 2-year cycle.
In the ANPRM, FHWA asked if tunnel inspections should include evaluation of emergency response and non-emergency operational procedures. Oregon DOT noted the importance of reviewing inspector safety issues such as confined space and traffic safety requirements. A number of commenters also indicated that some review or assessment of tunnel security and emergency response procedures or measures might be appropriate, although the New Jersey DOT asserted that actual tracking and evaluation of these security systems could be problematic.
Regarding whether there are any special inspection procedures for new tunnels that should be included in inspector manuals, some commenters recommended that FHWA review and incorporate into the NTIS inspection procedures or guidelines developed by other agencies or in other countries. In particular, commenters pointed to the National Cooperative Highway Research Program (NCHRP) 20-07 Task 261 report and the AASHTO Movable Bridge Inspection, Evaluation and Maintenance Manual.
In the ANPRM, the FHWA asked what tunnel elements and systems should be inspected routinely. Oregon DOT indicated that drainage systems should be inspected twice per year, and liner; portal slopes; geotechnical elements; and lighting, ventilation, electrical, and fire control systems should be inspected at a frequency determined by the owner based on risk factors. New Jersey DOT commented that drainage systems, tunnel structural supports (rock bolts,
In the ANPRM, the FHWA asked what inspection frequency the NTIS should establish for tunnel elements and systems. In general, most commenters recommended that the NTIS should require inspections every 24 months. The AASHTO and Oregon DOT suggested that the NTIS should require tunnel owners to establish a frequency for inspection based on a list of risk factors because some tunnels may require more frequent inspections than others. Ohio DOT and New Jersey DOT recommended that emergency systems should be inspected more frequently depending on the tunnel. The TBTA/MTA commented that elements directly affecting public safety and traffic
In the ANPRM, the FHWA asked whether a minimum frequency for tunnel inspection should be established. The majority of commenters stated that there should be a minimum frequency, and most commenters favoring a specific interval suggested a 2-year interval. Most commenters stated that more frequent inspections should be required in many cases to account for the wide variety of tunnel type and complexity, but that owners should determine inspection frequency. Jacobs Associates, ACEC, and PB Americas thought that the maximum interval of 12 months for visual inspections is appropriate for most tunnels, with a hands-on inspection completed at 2-year or longer intervals. The AASHTO, Oregon DOT, and ACEC stated that a longer interval of 4 to 6 years should be granted for new tunnels or tunnels with no advanced or unique structural elements and systems. The AASHTO indicated that intervals up to 6 years could be established for mechanical and electrical systems, but most commenters thought that these systems should be inspected or tested more frequently than tunnel structures.
In the ANPRM, we asked whether the NTIS should identify various types of inspections, and if so, what types of inspections should be defined. The majority of commenters noted that routine or visual inspections should be conducted at a more frequent interval than in-depth inspections, and that functional systems should receive inspections at different frequencies depending on risk and the complexity and condition of the systems.
In the ANPRM, we asked whether the frequency of each type of inspection should vary according to the type of inspection. All commenters agreed that inspection frequency should vary by type of inspection and that owners should determine the frequencies of routine and special inspections based on tunnel condition, age, and risk factors. Commenters noted that systems that owners actively operate may not need to be inspected as frequently as mechanical and electrical systems that are operated only in an emergency mode. The majority of commenters further suggested that structural systems of a tunnel should be inspected with the same frequency as a bridge (at a minimum every 2 years). The ASCE asserted that for non-seismic zones, inspections of geotechnical related items initially should be established on a minimum schedule, but may be adjusted to a longer frequency if historic inspection data indicate low risk of problems. For seismic zones, the ASCE recommended inspections should occur immediately following an earthquake.
The FHWA asked in the ANPRM whether the NTIS should include a risk-based frequency to account for the complexity of each tunnel. All commenters agreed that the NTIS should include a risk-based approach to establish the inspection frequency. Caltrans recommended that risk-based inspection frequencies should only apply to structural components. PB Americas indicated that a risk-based frequency should be established based on tunnel age, condition, and maintenance. The ACEC recommended that a minimum visual inspection be conducted every year and more extensive, hands-on inspections be conducted every 2 years. The ACEC also suggested that the NTIS should include a default inspection frequency for use in the absence of a structured risk-based assessment.
In the ANPRM, we asked what factors (
In the ANPRM, the FHWA indicated the NTIS likely would include requirements for inspection procedures for structural, mechanical, electrical, hydraulic or ventilation systems, and other major tunnel elements. In general, all commenters agreed the NTIS should require inspection of all systems in a tunnel. Oregon DOT remarked that the NTIS should not contain arbitrary frequency or type of inspections, but general guidelines with a requirement that the owner establish an appropriate inspection process for each tunnel. The AASHTO recommended inspecting portals, drainage systems, roadway surfaces, and air shafts. The NFPA recommended that security systems should be installed, inspected, tested, and maintained in accordance with NFPA 731, Standard for the Installation of Electronic Premises Security Systems.
The FHWA also asked in the ANPRM whether inspector qualification requirements should be the same as those established in the HRTTIM and what should be required in terms of tunnel inspector training, education, and experience. In general, the commenters observed that the HRTTIM provides for minimum inspector qualification requirements, but commented that the HRTTIM needs to be expanded to specifically include all pertinent disciplines, including electrical, mechanical, structural, geotechnical, geological, lighting, ventilation, and communications. Most commenters suggested that there should be a distinction between qualification requirements for Team Leaders and for other team members. Those commenters further proposed that Team Leaders should be professional engineers (PEs) licensed in the discipline specific to the tunnel inspection requirements and that
Most commenters recommended that the National Highway Institute (NHI) provide training in tunnel design and inspection, similar to what it provides for bridge inspectors (
Most commenters recommended that the NTIS specify separate experience requirements for Team Leaders and team members, and discipline-specific experience requirements for inspectors. Many commenters asserted that tunnel inspector experience requirements should parallel requirements under the NBIS. New Jersey DOT stated its concern that if the NTIS make specific training in tunnel design mandatory, the pool of potential inspectors with this particular expertise would result in higher costs than necessary. The TBTA/MTA suggested that any “rating” given for a tunnel component or overall tunnel, would be much more experience-based than ratings generated in a bridge inspection. The ACEC recommended that the Team Leader have a minimum of 5 years of experience. Jacobs Associates recommended that the Team Leader have a minimum of 15 years of experience. The ASCE commented that inspector experience requirements should be tied to the complexity of the tunnel and the level of inspection (
The ANPRM also requested comments about who should be required to keep records of highway tunnel inspections performed within the State, whether the record keeping requirements contained in the HRTTIM are sufficient, and how long tunnel inspection records should be maintained.
In general, commenters stated that State DOTs should retain a centralized database for their tunnels and that other tunnel owners should retain these records themselves and also send the records to the State DOTs. Additionally, the commenters recommended that all records be reported to the FHWA similar to the requirements of the NBIS. Commenters further suggested that the record keeping requirements in the HRTTIM provide a good starting point, but consideration should be given to developing tunnel-specific core elements and condition codes (or ratings) for those elements that would lend themselves to an asset management system. Washington State DOT asserted that the HRTTIM should be modified to be less specific about repair priorities and more specific about inventory data retention. Many of the commenters recommended that the NTIS record keeping requirements mirror the NBIS. Oregon DOT commented that the tunnel condition assessment should be incorporated into the National Bridge Inventory (NBI) submittal. The AASHTO suggested that tunnel inspection records for local streets and roads should be separate and the responsibility of the owner. The ACEC indicated that site-specific or other special conditions might be required for new tunnels and should be specified by the tunnel designer. The ASCE pointed out that the HRTTIM does not currently provide condition codes (or ratings) for individual elements in a tunnel and that a new system should be considered that would encompass the full spectrum of structural, mechanical and electrical components to be inspected. Pennsylvania DOT asserted that commonly recognized element-level recording should be followed to provide the basis for maintenance needs.
Most commenters recommended that tunnel inspection records be kept for the life of the structure similar to the NBIS. However, AASHTO suggested that inspection records should be kept for several years after the tunnel is replaced. The NFPA recommended records retention for four inspection cycles for at least 10 years. The ACEC asserted that tunnel inspection records should be retained for seven inspection cycles, and PB Americas suggested that tunnel inspection records should be retained for a period of at least 7 years.
The ACEC commented that the FHWA should consider homeland security concerns in establishing the NTIS. For example, ACEC noted that detailed tunnel records should not be released without proper authorization and identification. The ACEC also suggested that the FHWA should consult with other relevant Federal agencies on the security risks for the disclosure of potentially sensitive information.
In the ANPRM, the agency requested comments regarding whether a condition-based rating system should be used for rating tunnel elements. The Florida, Oregon and Ohio DOTs, along with the TBTA/MTA and Jacob Associates, agreed that a condition rating system similar to that in the NBIS should be used to rate tunnel elements. However, a number of commenters, including the ASCE, ACEC, Caltrans and others, commented that some sort of rating system should be used, but generally agreed that a system similar to that used in the NBIS is too subjective and that a more element-level rating system should be developed and incorporated in the NTIS. Some commenters also noted that a tunnel sufficiency rating similar to that used under the NBIS should be developed and incorporated into the NTIS.
The FHWA also asked if the ratings should be used for funding decisions. The New Jersey DOT suggested that a prioritization system tied to element ratings would be appropriate. However,
MassHighways and AASHTO recommended that a rating matrix be developed wherein various elements would be rated and their condition tracked. The AASHTO recommended that such a matrix could include items such as costs, risk, consequence, and time to repair.
In the ANPRM, the FHWA asked what tunnel data elements should be collected (name, age, length, width, height, number of lanes,
The AASHTO, Caltrans, MassHighways, and the Washington State, Oregon, and Florida DOTs commented that the data collected should be similar to data collected under the NBIS. The AASHTO also commented that inventory data should include special elements such as ventilation, lighting, type of ceilings, type of design, structural elements, and conditions and appraisal ratings. The AASHTO recommended that core elements should be developed and applied. New Jersey DOT recommended that the NTIS should use the NBI as a starting point and add information specific to tunnels.
The ANPRM included a question regarding how often data should be collected and reported. The ASCE suggested that there should be an initial inventory entered after the NTIS is implemented and then updated at each inspection. The ACEC recommended that the data be collected and reported at a minimum of 5 years and as changes occur to tunnel condition, repairs completed, system replaced or updated. The AASHTO, MassHighways, and the Washington State and Florida DOTs commented that the data should be collected in conjunction with inspection cycles and reported annually. Ohio DOT advocated for reporting inspection data every 2 years, but reporting inventory data (
In the ANPRM, the FHWA requested comments about whether data should be collected and reported to FHWA. In general, all responders expressed general support for data collection and reporting. Additionally, most commenters believed that the data should be reported to FHWA. Caltrans recommended that the data should be reported to FHWA if the intent is to determine funding needs. New Jersey State DOT also suggested that the data should not be reported to FHWA unless a Federal-aid program (similar to the Highway Bridge Program) is created to fund improvement projects for identified needs.
In the ANPRM, the FHWA asked whether tunnel identification numbers should be used. Most commenters responded that a system should be used to identify the tunnel.
The FHWA also asked what criteria should be used to assign an identification number. The ACEC advocated for criteria similar to the NBIS criteria. Caltrans suggested that the identification number should be similar to the NBI to simplify creating a numbering system. Washington State DOT commented the system should not allow duplicated identifiers between bridge and tunnel identification numbers. AASHTO recommended a system similar to the bridge inventory numbering system would be adequate.
The ANPRM included questions about how inspection teams should be organized, whether inspection teams should be established with differing levels of responsibility, and whether one person on the team should have overall responsibility for the program. In general, commenters recommended that the NTIS should provide guidance regarding inspection team organization, training, and certification. MassHighways, the Oregon and California DOTs, and AASHTO stated that while guidance within the NTIS on this matter is appropriate, tunnel owners should determine the composition and organization of the inspection teams to best address various tunnel types, complexities, construction, and related systems. Conversely, the ASCE commented that rather than a tunnel owner determining inspection team organization, the NTIS should provide guidelines on the organization and composition of inspection teams per category of tunnel.
Most commenters advocated for the formation of multidisciplinary inspection teams to encompass the various systems encountered in complex tunnels, incorporating areas of expertise in structural, geotechnical, geological, mechanical, electrical, ventilation, and operational systems. The ASCE noted that teams should be developed by category of tunnel and should be comprised of a Team Leader and inspection members specializing in the aforementioned tunnel systems. Conversely, the NFPA noted that while inspection teams should include all needed specialized expertise for thorough tunnel inspection, team members would not need to have a specialization in any one area. PB Americas commented that the team should be, at a minimum, comprised of two inspectors and a data recorder to provide for expedited inspections, limited lane shutdowns, and team safety. The ACEC recommended that inspection teams include two inspectors—an engineer and a recorder, but added that additional team members may be required to expedite inspections of complex tunnels and to improve team safety. The ACEC also noted that for mechanical and electrical system inspections, inspectors typically should not be responsible for the maintenance of these functions within the tunnel. The Florida and New Jersey DOTs commented that separate teams should be organized for each tunnel system (
Most commenters favored training and certification requirements for tunnel inspectors. In general, commenters asserted that the NTIS should provide guidance on minimum training, certification and licensing of inspectors, but States should determine final certification. The Pennsylvania and Ohio DOTs and the NFPA commented that teams should be
In general, commenters recommended that the NTIS provide guidance on the levels of responsibility involved in conducting tunnel inspections, but States should determine the final distribution of responsibility among inspection teams and program administrators. The TBTA/MTA, Jacobs Associates, Caltrans, and the New Jersey DOT commented that teams should have differing levels of responsibility with regard to system inspection, Team Leadership, and reporting. Whether teams are organized as multidisciplinary units or by system specialty, as previously discussed, commenters generally agreed that Team Leadership should be responsible for initiating and reporting tunnel inspections. The New Jersey DOT added that a Program Manager should be tasked with overall inspection program responsibility. The ASCE indicated that a PE should lead multidisciplinary teams and be responsible for reporting from all disciplines. Conversely, the ACEC commented that each team member should be responsible for their respective disciplines, rather than a Program Manager.
Although commenters overwhelmingly agreed that teams should include a person responsible for the inspection, comments varied as to what position this person should hold. The ASCE, Caltrans, and the Washington State DOT commented that a Chief Inspector or Program Manager, at a level higher than that of the inspection Team Leader, should have overall responsibility for the tunnel inspection. MassHighways and the Oregon and New Jersey DOTs noted that Program Manager responsibilities should be limited to program administration and oversight. The NFPA added that the person in charge of the program should be superior to and separate from the inspectors to ensure independent program oversight and accountability. Several commenters asserted that Team Leaders, whether overseeing a multidisciplinary team or discipline-specific team, ultimately should be responsible for inspections. Jacobs Associates, MassHighways, and the Ohio and New Jersey DOTs indicated that the leader of each discipline, component, or system inspected should have responsibility for that aspect of the overall inspection. Ohio DOT added that members should sign off on their area of inspection. The AASHTO, ACEC, and the Florida DOT stated that the Team Leader should be a licensed PE, and the ACEC added that the Team Leader should have a minimum of 5 years experience and be certified by the State to perform and lead tunnel inspections.
The FHWA also asked about what technical publications, if any, should be incorporated by reference into the NTIS. In response, commenters cited several publications for consideration as primary references for inclusion in the NTIS. Six State DOTs, and the ASCE and ACEC, recommended incorporating the HRTTIM. MassHighways, Oregon DOT, AASHTO, ASCE, and PB Americas recommended incorporating the “FHWA Road Tunnel Design Manual.” Caltrans, AASHTO, ASCE, and NFPA recommended incorporating “NFPA 502—Standard for Road Tunnels, Bridges, and Other Limited Access Highways.” Ohio and Pennsylvania DOTs, AASHTO, and ASCE recommended incorporating the AASHTO Manual for Condition Evaluation of Bridges.
In addition to these publications, commenters representing several State DOTs, industry organizations, and commercial companies also cited the following references for possible incorporation within the NTIS:
• NCHRP Project 20-07, Task 261, Best Practices for Implementing Quality Control and Quality Assurance for Tunnel Inspection (currently under development);
• NHI Bridge Inspectors Reference Manual;
• 23 CFR 650, Subpart C, National Highway Bridge Inspection Standards;
• American National Standards Institute/American Welding Society (ANSI/AWS) D1.1 Structural Welding Code—Steel;
• ANSI/AWS D1.5 Bridge Welding Code;
• American Railway Engineering and Maintenance-of-Way Association (AREMA) Fatigue Standards;
• AREMA Manual for Railway Engineering, Chapter 9, Part 1, Subsections 1.2 and 1.5;
• 29 CFR, OSHA Standards;
• FHWA Inspection of Fracture Critical Bridge Members;
• FHWA Manual on Uniform Traffic Control Devices;
• AASHTO Movable Bridge Inspection, Evaluation and Maintenance Manual;
• AASHTO Manual for Condition Evaluation of Bridges; and
• NFPA 731 Standard for the Installation of Electronic Premises Systems.
The UTC recommended two publications from the International Symposium on Tunnel Safety and Security, Stockholm, Sweden, March 2008: (1) Full-Scale Fire Testing for Road Tunnel Applications—Evaluation of Acceptable Fire Protection Performance, Maarti Tuomisaari, Marioff Corporation Oy, Vantaa, Finland, and (2) Implementation of Water Mist Systems in Road Tunnels, Project Case Studies, Markku Vuorisalo, Marioff Corporation Oy, Vantaa, Finland. One individual also recommended contacting the New York Port Authority for information regarding tunnel inspection guidelines developed in the 1980s.
Most commenters did not suggest any particular QC/QA procedures. Of those commenting on the issue, eight agreed with QC/QA requirements similar to the NBIS, while six stated that such requirements should be general and not arbitrary.
In the ANPRM, the FHWA asked for information related to tunnel inspection costs. Several commenters had no comment or indicated no data was available. Of those commenting on cost of inspections, several suggested a cost per lane foot as opposed to linear foot of tunnel length as the most accurate way to itemize the actual inspection costs.
The TBTA/MTA commented that its recent inspection of the Queens-Midtown Tunnel cost $631,500, which translates to approximately $24.89 per linear foot of each roadway lane. Because this cost could change depending on the number of traffic lanes and tunnel tubes, TBTA/MTA
The FHWA requests that commenters provide additional information regarding estimated or actual costs associated with tunnel inspections, particularly the typical inspection costs per linear foot of tunnel. In addition, the FHWA asks for comments regarding the anticipated increased costs the proposed NTIS would impose on tunnel owners.
In the ANPRM, the FHWA provided summary information on completed and ongoing research related to tunnel design, construction, rehabilitation, and inspection. The FHWA solicited feedback on other existing or completed tunnel research, and any ideas for additional needed research.
Numerous commenters indicated the need for additional tunnel-related research. The AASHTO and the Oregon and Florida DOTs listed as a research priority identifying hidden deficiencies with structural elements such as tunnel liners and portals, including non-destructive methods. Several commenters recommended as research priorities the needs identified in the research roadmap by the AASHTO Bridge Subcommittee's T-20 Technical Committee. The ACEC and PB Americas recommended FHWA develop a new, more detailed tunnel inspection manual addressing ventilation testing and mechanical and electrical inspection. They also recommended updates to the tunnel asset management database. PB Americas further suggested research to test the performance in fires of various materials used, or proposed for use in tunnels. The AASHTO commented that tunnel safety during construction, rehabilitation, inspection, and maintenance needs to be addressed through research. The AASHTO also requested research to develop guidance on improving vertical clearance in bored tunnels. Further, AASHTO indicated urban and rural highway tunnels have different issues of concern. One consultant recommended that the FHWA continue to work with European and Asian highway and rail management agencies. One consultant commented that newer research is available from European associations like the World Road Association and the European Thematic Network on Fire in Tunnels on tunnel fire protection and fixed fire suppression. The NFPA provided a summary of the “International Road Tunnel Fire Detection” research project published by the Fire Protection Research Foundation.
The proposed NTIS are based, in part, on comments received in response to the ANPRM published on November 18, 2008. Giving due consideration to the comments received and summarized in the preceding section, this section presents the basis for the FHWA's proposed rulemaking. The FHWA proposes to amend 23 CFR Part 650 (Bridges, Structures, and Hydraulics), by adding Subpart E—National Tunnel Inspection Standards. The proposed NTIS would apply to all tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways. The NTIS would establish a tunnel definition, frequency of inspections, technical references, inventory database, and QC/QA requirements. The proposed rule also discusses procedures for follow-up on critical findings. Lastly, this action proposes to establish inventory and reporting requirements, including timeframes for submission of data by both the State and Federal agencies.
The majority of commenters on the ANPRM supported the establishment of NTIS. Section 650.501 would identify the NTIS purpose to establish the proper safety inspection and evaluation for tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways.
The FHWA proposes that the NTIS would apply to tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways.
The proposed NTIS would apply to inspection of life safety systems installed on a highway tunnel-like-structure space made by a group of bridges, or airtight structures. The NTIS would not apply to culverts or other types of non-highway tunnels. The FHWA would encourage owners of tunnels not subject to the NTIS to inspect their tunnels according to the NTIS. However, FHWA does not have jurisdiction to require inspection of tunnels that are not linked to title 23 Federal funds.
Proposed section 650.505 would include several definitions related to tunnel inspection.
Because the NTIS would be modeled after the NBIS and in order to ensure consistency in definitions, the agency proposes that the terms “American Association of State Highway and Transportation Officials (AASHTO) Manual,” “bridge inspection experience,” “critical finding,” “damage inspection,” “hands-on inspection,” and “operating rating” would have the same meaning as in 23 CFR 650.305.
The FHWA proposes to define a “complex tunnel” as one characterized by advanced or unique structural elements and functional systems because the inspection of these tunnels requires a multidisciplinary inspection team approach. For example, a tunnel with a suspended ceiling would be considered a complex tunnel requiring a multidisciplinary inspection, as suspended ceilings are structural elements that contribute to a functional system (ventilation plenum).
The FHWA proposes that the NTIS would include a number of definitions largely modeled after definitions used in the NBIS. For example, the proposed definitions of “professional engineer” and “routine permit load” would be substantially similar to the definitions for those terms in the NBIS. The FHWA also proposes to use the same definition for “tunnel inspection experience” as the NBIS definition for “bridge inspection experience,” replacing the word “bridge” with the word “tunnel” as applicable. Similarly, the FHWA proposes that the terms “legal load,” “quality assurance,” “quality control,” “routine inspection,” “special inspection,” and “team leader” would be modeled after the definitions in the NBIS, except that the word “tunnel” would replace the word “bridge” in each definition. The definitions of “in-depth inspection,” “initial inspection,” and “load rating” would largely mirror the definitions found in the NBIS, with changes made to account for the differences between bridges and tunnels. The FHWA notes that under the proposed definition of “load rating,” for roadways carried within a tunnel, any internal structural support systems,
In order to maintain consistency with established terms, the FHWA proposes that a number of terms in the NTIS would have the same meaning as terms that appear in title 23 of the United States Code. For example, the term “Federal-aid highway” would have the same meaning as in 23 U.S.C. 101(a)(5), and the term “highway” would have the same meaning as in 23 U.S.C. 101(a)(11). The term “public road” would have the same meaning as in 23 U.S.C. 101(a)(27). The term “State transportation department” would have the same meaning as in 23 U.S.C. 101(a)(34).
The FHWA proposes a definition of “functional systems” that would include non-structural systems, such as electrical, mechanical, fire suppression, ventilation, lighting, communications, monitoring, drainage, traffic signals, emergency egress, refuge room spacing, carbon monoxide, or traffic safety components. The agency believes this definition would be broad enough to encompass any functional systems that might be present in tunnels.
The FHWA proposes that the NTIS would include a definition of “portal” to refer to the entrance and exit of a tunnel exposed to the environment, including bare rock, constructed tunnel entrance structures, and buildings. This definition would convey that portals exist on all tunnels, but may vary in structure and complexity.
The proposed definition of “Program Manager” would refer to the individual in charge of the program who has been assigned or delegated the duties and responsibilities for tunnel inspection, reporting, and inventory. Under this definition, the Program Manager would provide overall leadership and guidance to inspection Team Leaders. The agency believes that a Program Manager should not only have a strong background in the technical nature of tunnels, but a thorough understanding of the NTIS program requirements.
Regarding the definition of “tunnel,” FHWA agrees with most of the commenters that the AASHTO tunnel definition, with some modification, should be used in the NTIS. Accordingly, the proposed definition of tunnel is a modified AASHTO definition without establishing a minimum length under the proposed NTIS. In order to ensure that tunnels and bridges are only inspected under either the NTIS or the NBIS, the proposed definition modifies the AASHTO definition to clarify that a tunnel does not include a bridge which is inspected under the NBIS. The agency recognizes many structures exist where the distinction between tunnel or bridge could be difficult to determine. In cases where a tunnel or bridge may overlap, FHWA recommends that States determine whether the NTIS or NBIS is most appropriate for a particular structure. When a tunnel is comprised of several abutted, dissimilar structures, the NTIS would apply to the entire tunnel. Additionally, the proposed definition of “tunnel” specifies that a tunnel is a structure that requires special design considerations that may include lighting, ventilation, fire protection systems, and emergency egress capacity based on the owner's determination.
Section 650.507 would specify which tunnels must be inspected under the NTIS, inspection program responsibilities, organizational requirements and general deliverables of an inspection program, and program delegation requirements.
In general, ANPRM commenters suggested that tunnel owners should determine the organization and composition of tunnel inspection programs to best address various tunnel types, complexities, structures, and related systems. The ANPRM commenters also indicated that the NTIS should provide guidance on the levels and delegation of responsibility involved in conducting tunnel inspections, reporting findings, ensuring quality assurance, and maintaining tunnel inventories, but that States should determine the final distribution of responsibility among program administrators and inspection teams. The FHWA agrees that the NTIS should provide general guidance on the organization and composition of tunnel inspection programs, leaving the specifics of program administration and delegation to the States and Federal agencies involved.
In section 650.507(a), the FHWA proposes requiring that each State inspect or cause to be inspected all tunnels constructed or renovated with title 23 Federal funds located on public roads that are within the State's boundaries, except for tunnels owned by Federal agencies. Therefore, State inspection responsibilities would be limited to tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways. The FHWA also proposes to exclude States from inspection responsibilities for tunnels owned by Federal agencies.
Proposed section 650.507(b) describes the tunnel inspection responsibilities of Federal agencies that own tunnels. The proposed rule would require Federal agencies to ensure inspection of all highway tunnels within their respective jurisdiction.
Under section 650.507(c), the FHWA proposes that where a tunnel is jointly owned, all bordering States and Federal agencies with ownership interests should determine through a joint agreement the inspection responsibilities of each State and Federal agency.
Proposed section 650.507(d) describes basic tunnel inspection program organization requirements. The proposed rule would require State transportation departments and Federal agencies to be organized with a unit or units that are responsible for setting statewide or Federal agency-wide tunnel inspection program policies and procedures, assuring regularly scheduled quality inspections are performed throughout the State or agency, and maintaining the State or Federal tunnel inventory. In order to ensure tunnel inspection program consistency and uniformity, the FHWA proposes to require that all of these activities be performed at a statewide or Federal agency-wide organizational level of the State DOT or the Federal agency. This section would not preclude, however, the specific tunnel inspection activities, as noted in section 650.507(d)(2), from being assigned to a qualified authority or consulting engineering firm.
The FHWA recognizes the broad range of tunnel structure complexity that exists along State and Federal highways, and therefore, proposes under section 650.507(d)(1) that, in addition to the development of general program policies and procedures, State and Federal agencies would prepare tunnel-specific policies and procedures guiding tunnel inspections.
Proposed section 650.507(d)(2) refers to a requirement for a State or Federal agency tunnel owner to establish load ratings for the tunnel. As presented, “load ratings” refers to allowable vehicular live loads on suspended or spanning roadways within the tunnel or roadways above the tunnel. Load ratings may be directly related to the structural capacity of the tunnel lining and
Proposed section 650.507(e) would allow State and Federal agencies to delegate certain tunnel inspection functions, as generally described or referred to in sections 650.507(d)(1) and (d)(2), to qualified individuals; however, the overall program responsibility could not be delegated. This section is intended to ensure that State and Federal agencies choosing to delegate tunnel inspection activities do so under formal written agreement that clearly states the roles and responsibilities of all agencies and entities involved. As with other State-administered Federal-aid programs under title 23, United States Code, delegation of tunnel inspections, reports, load ratings and other requirements of the NTIS must be accompanied by appropriate State transportation department oversight.
Proposed section 650.507(f) would require that each State or Federal agency owning a tunnel requiring inspection under the NTIS have a tunnel inspection organization that includes a Program Manager meeting the qualifications proposed in 650.509(a). This requirement would also apply to organizational units that have been delegated program management functions by the overall agency Program Manager, such as local public agencies or qualified consulting engineering firms.
This section would outline the minimum qualifications for tunnel inspection team members, including qualification requirements for Program Managers, Team Leaders, and individuals responsible for load rating of tunnels in terms of professional registration, certification, experience, and education. Under the proposed rule, minimum qualifications for team members other than the Program Manager and the Team Leader would be established by each Program Manager in accordance with the nature and complexity of the tunnels in their inventory. Team members may include individuals with specialized professional registration, certification, experience, and education in areas such as structural, mechanical, electrical, geotechnical, ventilation, lighting, operations, or communications, as required depending on the nature and complexity of the tunnel being inspected.
Commenters responding to the ANPRM generally expressed that the personnel responsible for the management, planning, and execution of tunnel inspections should be registered PEs with a minimum amount of applicable experience of 5 to 15 years. The FHWA believes that, for the tunnel inspection Program Manager, experience with inspection of transportation structures is as valuable as professional registration. Therefore, the proposed rule would require a tunnel inspection Program Manager to be either a registered PE, or have at least 10 years of tunnel inspection experience.
Three commenters to the ANPRM believed that a Team Leader should be a registered PE, and several commenters pointed to the FHWA tunnel inspection manual which recommends that the Team Leader be a PE. The FHWA agrees that a Team Leader should be a registered PE due to the range of systems complexity existing within the current inventory of tunnels.
Proposed section 650.509(c) would require that a person with overall responsibility for load rating tunnels be a registered PE. The agency notes that there are two situations under which load rating of tunnels could be necessary: (1) When a structure supporting traffic lanes within the tunnel is not directly supported by the ground and spans some unsupported distance, and (2) when traffic loads above the tunnel impose a live load on the tunnel lining. In either case, the individual charged with the overall responsibility for load rating the tunnels must be a registered PE because assessment of the adequacy of the tunnel lanes or lining to carry live traffic loads requires engineering calculations.
Commenters generally suggested that tunnel inspectors should attend a comprehensive training course with periodic refresher training, similar to what is required by the NBIS. The FHWA agrees the NTIS should require that tunnel inspection Program Managers and Team Leaders successfully complete a comprehensive tunnel inspection training course and tunnel inspection refresher training courses at regular intervals. The FHWA plans to develop such training courses consistent with industry recommendations and may incorporate training requirements into the NTIS in the future.
The ANPRM did not address the subject of tunnel inspector certification, and commenters responding to the ANPRM did not offer any suggestions concerning inspector certification. The FHWA believes that for tunnel inspector certification, States and Federal agencies should have discretion whether and how to implement such a program. The FHWA may consider incorporating training requirements into the NTIS in the future. The training requirements could serve as an integral part of a State or Federal agency certification process. If tunnel owners follow the tunnel inspection qualification requirements proposed in this NPRM, the FHWA believes further certification would not be required.
In order to ensure that all tunnels are inspected soon after publication of the final rule, the FHWA proposes under section 650.511(a) that within 12 months of the effective date of the rule, tunnel owners must inspect each tunnel according to the inspection guidance provided in the HRTTIM.
This section also considers tunnel inspection frequencies for routine inspections, and for in-depth, damage, and special inspections. For routine inspections, most commenters thought that a maximum interval should be established, and preferred an interval of 24 months or less, with a lesser interval (greater frequency) to be determined by the tunnel owner based on risk and other factors. The FHWA concurs with this approach. Based on experience with existing tunnel inspection programs, the FHWA believes that intervals greater than 24 months would introduce too much risk, even for tunnels with no advanced or unique structural elements and systems in good condition, as there is significant likelihood that tunnel conditions can change during an interval greater than 24 months.
The FHWA believes there is considerable data and experience with tunnel inspections by many States and other agencies to support inspection frequency decisions unique to individual tunnels. Based on this experience, and considering the limited number of tunnels in the Nation's inventory and the wide variety of type and complexity of those tunnels, the agency proposes under section 650.511(b) to establish a maximum interval of 24 months for routine inspections, with more frequent inspections for certain tunnels and many functional systems. The FHWA agrees that these increased frequencies for certain structural elements and functional systems should be determined by the Program Manager because unique characteristics are best understood by the Program Manager and
Recognizing that individual tunnel types and conditions vary widely, and that the contributing factors (
Regarding inspection frequencies for damage, in-depth, and special inspections, section 650.511(c) of the proposed rule would require that Program Managers establish criteria to determine the level and frequency of these inspections. Damage, in-depth, and special inspections could include non-destructive testing or other methods not used during routine inspections at an interval established by the Program Manager. In-depth inspections would be required for complex tunnels and for certain structural elements and functional systems when necessary to ascertain fully the condition of the element or system.
Most State DOTs commenting on the ANPRM agreed that the HRTTIM should be used as the basis for inspection and rating of tunnel structural elements and functional systems. The FHWA agrees and proposes in section 650.513(a) that tunnel owners inspect tunnel structural elements and functional systems in accordance with the inspection guidance provided in the HRTTIM, which would be incorporated by reference into the NTIS. Caltrans noted that the HRTTIM lacked guidance relative to the inspection and rating of functional systems, including electrical, and mechanical components. The FHWA recognizes that some modifications and updating of the HRTTIM, such as developing specifications for a rating system, will be necessary. The FHWA currently is working on revising the manual to incorporate many of the suggestions of the commenters to the ANPRM. The agency hopes to complete the revised manual prior to publication of the final rule for the NTIS. The FHWA solicits comments on needed revisions to the HRTTIM. Until the new manual is completed, the existing HRTTIM would provide general guidance for inspection requirements under the NTIS. In the event of any discrepancies between the HRTTIM and the final rule, the inspection requirements and procedures in the final rule would apply.
The FHWA proposes in section 650.513(b) that tunnel owners should provide at least one Team Leader, who meets the minimum qualifications stated in section 650.509, at the tunnel at all times during each initial, routine, and in-depth inspection.
Additionally, functional systems testing for inspection and reporting purposes should be distinguished from inspections for maintenance purposes. To that end, and to specify the levels of inspection required for various components, we propose in section 650.513(c) that Program Managers prepare and document tunnel-specific inspection procedures for each tunnel inspected and inventoried commensurate with tunnel complexity and identify tunnel structural elements and functional systems to be inspected and tested. The Program Manager also could stipulate unique inspector qualifications, specialties, certifications, and frequencies and equipment necessary in these written procedures.
A number of commenters agreed that functional systems, including electrical and mechanical components, should be inspected and rated as part of the requirements of the NTIS. The FHWA agrees and proposes in section 650.513(d) that Program Managers establish functional system testing requirements, including spot testing where appropriate, requirements for direct observation of critical system checks, and testing documentation.
The FHWA believes it is important to distinguish between different types of tunnels and define and highlight the unique needs of complex tunnels. This view is consistent with comments received. Therefore, for complex tunnels, section 650.513(e) proposes that tunnel owners identify specialized inspection procedures, and additional inspector training and experience required to inspect complex tunnels. The rule further proposes that tunnel owners inspect complex tunnels according to those procedures.
Additionally, AASHTO, Florida DOT, and the TBTA/MTA suggested that discipline-specific inspectors should be utilized to inspect components commensurate with the inspector training and experience. The FHWA agrees and proposes in section 650.513(f) that the NTIS require tunnel owners to conduct tunnel inspections with qualified staff not associated with the operation or maintenance of the tunnel structure or functional systems. The FHWA believes it is important that critical tunnel components receive independent inspections.
A tunnel may contain certain structural components that when subjected to deterioration could impact the structural capacity of those components, including structural framing systems for tunnels carrying two levels of vehicular traffic or carrying vehicular traffic on top of the tunnel. In consideration of this, the proposed NTIS would require under section 650.513(g) that tunnel owners rate each tunnel as to its safe vehicular load-carrying capacity in accordance with the AASHTO Manual for Bridge Evaluation. Additionally, tunnel owners would be required to post or restrict the highways in or over a tunnel in accordance with this AASHTO manual, unless otherwise specified in State law, when the maximum unrestricted legal loads or State routine permit loads exceed that allowed under the operating rating or equivalent rating factor.
As with the NBIS, the FHWA proposes in section 650.513(h) that the NTIS would require tunnel owners to prepare tunnel documentation (consistent with the HRTTIM) and maintain written reports on the results of tunnel inspections together with notations of any action taken to address the findings of such inspections. The proposed NTIS would require that tunnel owners maintain relevant maintenance and inspection data to allow assessment of current tunnel condition and record the findings and results of tunnel inspections. At a minimum, FHWA proposes that tunnel owners would maintain files and reports with data regarding basic tunnel information (
The FHWA plans to use a standard reporting form for submitting tunnel data to the agency and solicits public comments on the standard form posted in the docket. The FHWA also plans to develop a database for a national inventory of tunnels similar to the NBI. The standard reporting form would serve as the basis for the tunnel inventory, with the information collected on the form entered into the database. The FHWA expects to ask in the standard reporting form for an assessment of tunnel conditions.
Section 650.513(i) would require systematic QC/QA oversight of the inspection program, following procedures that maintain a high degree of accuracy and consistency in the inspection program. The QC/QA program would also include periodic field review of inspection teams and independent review of inspection reports and computations. The FHWA will consider including in the NTIS a requirement for periodic refresher training in the future.
Additionally, proposed section 650.513(j) would require tunnel owners to follow-up on critical findings according to established statewide or Federal agency-wide procedures. Critical findings should be addressed in a timely manner, with FHWA notified of any critical finding within 30 days and the actions taken to resolve or monitor the critical finding.
The FHWA plans to establish procedures for conducting reviews of State and Federal agency compliance with the NTIS. Accordingly, proposed section 650.513(k) would specify that States and Federal agencies provide information as required in cooperation with any FHWA review of State and Federal agency compliance with the NTIS.
The majority of commenters expressed support for the establishment of a national tunnel inventory database with data reported to the FHWA. The FHWA agrees that a NTI is necessary to ensure accurate records are kept on the condition of the national inventory of highway tunnels. Because tunnels could be more complex than bridges, and could have many other systems not included on bridges, the FHWA also proposes to create the tunnel inventory separate from the NBI.
For the purposes of establishing an initial inventory, section 650.515(a) would require States and Federal agencies with tunnels subject to the NTIS to report basic information about each tunnel within 30 days of the effective date of the rule. The information requested in subsection (a) should not require an inspection but is intended to be gleaned from existing inspection records for each tunnel. States and Federal agencies would assign unique tunnel numbers following the approach currently used in the NBIS coding guide.
Section 650.515(b) would require States and Federal agencies with tunnels to make a preliminary assessment of tunnel condition and rate the structural and functional systems in each tunnel on a 0 to 9 scale and send the information to FHWA within 90 days of the effective date of this rule. The scale is described in the HRTTIM at page 4-12. The rating of the systems of each tunnel would be based upon the files of the most recent inspection of the tunnel. The FHWA needs this data for the national inventory so that there is an initial appraisal of the condition of the Nation's highway tunnels. If a system in a tunnel were rated 3 or less, the State or Federal agency would be required to file with the FHWA within 30 days of identification of the critical finding a plan to address the critical finding.
Proposed section 650.515(c) would require that upon performing an initial inspection as proposed under section 650.511(a), States and Federal agencies notify the FHWA of any updates to the information provided under sections 650.515(a) and (b).
After this initial effort to obtain data on the tunnels subject to the NTIS, the FHWA proposes in section 650.515(d) that each State or Federal agency owning a tunnel would prepare, maintain, and make available to FHWA upon request an inventory of all its tunnels subject to the NTIS reflecting the findings of the tunnel inspections.
Under proposed section 650.515(e), for all inspections, tunnel owners would enter the tunnel data into the State or Federal agency inventory within 90 days of the date of inspection. For modifications to existing tunnels that alter previously recorded data and for new tunnels, proposed section 650.515(f) would require tunnel owners to enter the data into the State or Federal agency inventory within 90 days after the completion of the work. For changes in traffic load restriction or closure status, proposed section 650.515(g) would require tunnel owners to enter the data into the State or Federal agency inventory within 90 days after the change in status of the structure.
Commenters cited several tunnel resources. Those references included the HRTTIM; NFPA 502 Standard for Road Tunnels, Bridges, and other limited Access Highways; FHWA Technical Highway Tunnel Design Manual (the portion dealing with inspection); AASHTO Manual for Condition Evaluation of Bridges; and AASHTO Movable Bridge Inspection, Evaluation, and Maintenance Manual. The FHWA recognizes value can be gained from portions of these references for those involved in the inspection of tunnels. In addition, the FHWA recognizes the value to the tunnel inspection community of other references, including the Study of 70MW Fires in Representative Highway Tunnel Models. However, only one, the HRTTIM, is solely focused on the inspection of tunnels. The FHWA proposes that section 650.517 would incorporate the HRTTIM by reference.
All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FHWA will continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period.
The FHWA has determined that this proposed rule would constitute a significant regulatory action within the meaning of Executive Order 12866 and would be significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. This action would be considered significant because of widespread public interest in the safety of highway tunnels. It is also anticipated that the economic impact of this rulemaking could be substantial, although not economically significant within the meaning of Executive Order 12866.
Tunnel inspection costs can vary greatly from tunnel to tunnel. However, comments suggest that inspection costs
Although the NTIS could impose additional costs on tunnel owners, the FHWA anticipates that the potential benefits associated with this rulemaking would outweigh the resulting costs. Timely tunnel inspection is vital to uncovering safety problems and preventing catastrophic collapses like that occurring in the Central Artery Tunnel. The FHWA does not have data that would permit precise quantification of the benefits of the proposed rule, and seeks comments on what the benefits are from requiring national tunnel inspection standards. The agency is taking this action because it believes that any repairs or changes that take place because of problems identified in the inspections could lead to substantial economic savings. These benefits might not be a direct result of inspection standards, but indirect benefits from changes made to tunnels because of inspections. We seek public comment on any other types of direct or indirect benefits of this rule.
Ensuring timely inspections of highway tunnels not only would enhance the safe passage of the traveling public, it would also contribute to the efficient movement of goods and people and to millions of dollars in fuel savings. For example, the Eisenhower/Johnson Memorial Tunnels, located west of Denver on I-70, facilitate the movement of people and goods from the eastern slope of the Rocky Mountains to the western slope. The Colorado Department of Transportation estimates that traveling through these tunnels, the public saves 9.1 miles by not having to travel over U.S. Highway 6, Loveland Pass. In the year 2000, approximately 28,000 vehicles traveled through the tunnels per day, which equates to 10.3 million vehicles for the year.
Additionally, the NTIS would protect investments in key infrastructure, as early detection of problems in tunnels could increase the longevity of these assets and create savings in maintenance and repair costs over time. Because tunnels are vital to the local, regional, and national economies, and to our national defense, it is imperative that these facilities are properly maintained and inspected.
The FHWA understands that the proposed NTIS regulations could increase present tunnel inspection costs to account for more frequent inspection of special elements and systems and for collection and reporting requirements. The FHWA solicits comments regarding the anticipated additional tunnel inspection costs that would be imposed by the proposed rule.
The proposed rule would not adversely affect, in a material way, any sector of the economy. In addition, the proposed rule would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this proposed rule on small entities and anticipates that this action would not have a significant economic impact on a substantial number of small entities. Because the proposed regulations are primarily intended for States and Federal agencies, the FHWA has determined that the proposed action would not have a significant economic impact on a substantial number of small entities. States and Federal agencies are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and the FHWA certifies that the proposed action would not have a significant economic impact on a substantial number of small entities.
The FHWA has preliminarily determined that this proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). The NTIS are needed to ensure safety for the users of our Nation's tunnels and to help protect Federal infrastructure investment. As discussed above, the FHWA finds that this regulatory action would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $141,300,000 or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, FHWA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and Tribal governments and the private sector. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or Tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.
The FHWA has analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132. The FHWA has determined that this proposed action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities would apply to this program.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The FHWA invites comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FHWA's performance; (2) the accuracy of the estimated burdens; (3) ways for the FHWA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized, including the use of electronic technology, without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB's clearance of this information collection.
The FHWA plans to collect data for the NTI related to basic tunnel information, tunnel and roadway geometrics, interior tunnel structural features, portal structural features, and preliminary assessment of tunnel condition on the form included in the docket. The anticipated respondents include the 50 States, the District of Columbia, and Puerto Rico. The FHWA expects the frequency of collection would be the first year after the NTIS are established and every twenty-four months thereafter. The FHWA estimates that the estimated average burden per response would be approximately 54 hours per participant every twenty-four months. The estimated total annual burden hours would be 2,800 hours every twenty-four months.
The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this proposed action would not have an effect on the quality of the environment.
This proposal would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights.
This proposed action meets applicable standards in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The FHWA has analyzed this proposal under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This proposed rule does not concern an environmental risk to health or safety that may disproportionately affect children.
The FHWA has analyzed this proposal under Executive Order 13175, dated November 6, 2000. The FHWA believes that this proposal would not have substantial direct effects on one or more Indian Tribes; would not impose substantial direct compliance costs on Indian Tribal governments; and would not preempt Tribal law. Therefore, a Tribal summary impact statement is not required.
The FHWA has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that the proposed rule would not constitute a significant energy action under that order because, although it is considered a significant regulatory action under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Bridges, Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements.
In consideration of the foregoing, the FHWA proposes to amend title 23, Code of Federal Regulations, part 650, by adding Subpart E, as set forth below:
Title 23, United States Code, Section 315; 23 CFR 1.27; 49 CFR 1.48(b).
This subpart sets the national standards for the proper safety inspection and evaluation for tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways.
The National Tunnel Inspection Standards (NTIS) in this subpart apply to all tunnels constructed or renovated with title 23 Federal funds that are located on public roads and tunnels on Federal-aid highways.
The following terms used in this subpart are defined as follows:
(a) Each State transportation department must inspect, or cause to be inspected, all tunnels constructed or renovated with title 23 Federal funds located on public roads and tunnels on Federal-aid highways that are fully or partially located within the State's boundaries, except for tunnels that are owned by Federal agencies.
(b) Each Federal agency must inspect, or cause to be inspected, all highway tunnels constructed or renovated with title 23 Federal funds located on public roads that are fully or partially located within the respective agency's responsibility or jurisdiction.
(c) Where a tunnel is jointly-owned, all bordering States and Federal agencies with ownership interests should determine through a joint formal written agreement the inspection responsibilities of each State and Federal agency.
(d) Each State transportation department in a State that contains one or more tunnels subject to these regulations, or Federal agency with a tunnel under its jurisdiction, must include a tunnel inspection organization that is responsible for the following:
(1) Statewide or Federal agency-wide tunnel inspection policies and procedures (both general and tunnel-specific), quality control and quality assurance procedures, and preparation and maintenance of a tunnel inventory.
(2) Tunnel inspections, reports, load ratings, and other requirements of these standards.
(e) Functions identified in paragraphs (d)(1) and (d)(2) of this section may be delegated through a formal written agreement, but such delegation does not relieve the State transportation department or Federal agency of any of its responsibilities under this subpart.
(f) The State transportation department or Federal agency tunnel inspection organization must have a Program Manager with the qualifications listed in § 650.509(a), who has been delegated responsibility for paragraphs (d)(1) and (d)(2) of this section.
(a) A Program Manager must, at a minimum, be a registered PE, or have 10 years tunnel inspection experience.
(b) A Team Leader must, at a minimum, be a registered PE.
(c) The individual charged with the overall responsibility for load rating tunnels must be a registered PE.
Each State transportation department or Federal agency tunnel inspection organization must conduct or cause the following to be conducted for each tunnel under its responsibility or jurisdiction:
(a)
(b)
(2) For tunnels needing inspection more frequently than at twenty-four-month intervals, establish criteria to determine the level and frequency to which these tunnels are inspected based on a risk analysis approach that considers such factors as tunnel age, traffic characteristics, geotechnical conditions, and known deficiencies.
(c)
Each State transportation department or Federal agency tunnel inspection organization, to carry out its inspection responsibilities, must perform or cause to be performed the following:
(a) Inspect tunnel structural elements and functional systems in accordance with the inspection guidance provided in the Highway and Rail Transit Tunnel Inspection Manual (incorporated by reference,
(b) Provide at least one Team Leader, who meets the minimum qualifications stated in § 650.509, at the tunnel at all times during each initial, routine, and in-depth inspection.
(c) Prepare and document tunnel-specific inspection procedures for each tunnel inspected and inventoried, commensurate with tunnel complexity, identifying tunnel structural elements and functional systems to be inspected.
(d) Establish functional system testing requirements, requirements for direct observation of critical system checks, and testing documentation.
(e) For complex tunnels, identify specialized inspection procedures, and additional inspector training and experience required to inspect complex tunnels. Inspect complex tunnels according to the specialized inspection procedures.
(f) Conduct tunnel inspections with qualified staff not associated with the operation or maintenance of the tunnel structure or functional systems.
(g) Rate each tunnel as to its safe vehicular load-carrying capacity in accordance with the AASHTO Manual for Bridge Evaluation. Post or restrict the highways in or over the tunnel in accordance with this same manual unless otherwise specified in State law, when the maximum unrestricted legal loads or State routine permit loads exceed that allowed under the operating rating or equivalent rating factor.
(h) Prepare tunnel inspection documentation as described in the Highway and Rail Transit Tunnel Inspection Manual (incorporated by reference,
(i) Assure systematic quality control and quality assurance procedures are used to maintain a high degree of accuracy and consistency in the inspection program. Include periodic field review of inspection teams and independent review of inspection reports and computations.
(j) Establish a statewide or Federal agency-wide procedure to assure that critical findings are addressed in a timely manner. Notify the FHWA within 30 days of any critical finding and the actions taken to resolve or monitor the critical finding.
(k) Provide information annually, or as required in cooperation with any FHWA review of State and Federal agency compliance with the NTIS.
(a)
(1)
(2)
(3)
(4)
(b)
(2) A system rated 3 or below is considered a critical finding. The State or Federal agency must file a follow-up plan with the FHWA within 30 days of identification of a critical finding and the actions taken to address all critical findings.
(c)
(d)
(e)
(f)
(g)
“The Federal Highway Administration and Federal Transit Administration Highway and Rail Transit Tunnel Inspection Manual,” 2005 edition, available in electronic format at
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Advance notice of proposed rulemaking; solicitation of comments.
The Alcohol and Tobacco Tax and Trade Bureau requests public comments on standards that have been proposed to distinguish between pipe tobacco and roll-your-own tobacco for Federal excise tax purposes based upon certain physical characteristics of the two products. We also request comments on any other physical characteristics that may be used for such purposes.
We must receive written comments on or before September 20, 2010.
You may send comments on this advance notice to one of the following addresses:
•
•
•
See the Public Participation section of this advance notice for specific instructions and requirements for submitting comments, and for information on how to request a public hearing.
You may view copies of this advance notice, selected supporting materials, and any comments we receive about this proposal at
Amy R. Greenberg, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau (202-453-2099).
Chapter 52 of the Internal Revenue Code of 1986 (IRC) sets forth the Federal excise tax and related provisions that apply to tobacco products and processed tobacco manufactured in, or imported into, the United States. Section 5702(c) of the IRC (26 U.S.C. 5702(c)) defines the term “tobacco products” as “cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.” Each of these terms is also separately defined in section 5702.
Regulations implementing the provisions of chapter 52 of the IRC are contained in 27 CFR parts 40 (Manufacture of tobacco products, cigarette papers and tubes, and processed tobacco), 41 (Importation of tobacco products, cigarette papers and tubes, and processed tobacco), 44 (Exportation of tobacco products and cigarette papers and tubes, without payment of tax, or with drawback of tax), 45 (Removal of tobacco products and cigarette papers and tubes, without payment of tax, for use of the United States), and 46 (Miscellaneous regulations relating to tobacco products and cigarette papers and tubes). These regulations are administered by the Alcohol and Tobacco Tax and Trade Bureau (TTB).
On February 4, 2009, the President signed into law the Children's Health Insurance Program Reauthorization Act of 2009, Public Law 111-3, 123 Stat. 8 (“the Act”).
Section 701 of the Act amended the IRC to increase the Federal excise tax rates on tobacco products and cigarette papers and tubes, effective as of April 1, 2009. The tax rates on pipe tobacco and roll-your-own tobacco, which had both previously been $1.0969 per pound, were raised to $2.8311 per pound for pipe tobacco and $24.78 per pound for roll-your-own tobacco.
On June 22, 2009, TTB published a temporary rule in the
In an additional temporary rule, published in the
Temporary rule T.D. TTB-78 included new provisions regarding the expansion of the statutory definition of roll-your-own tobacco generally to include cigar wrapper and filler, and regarding the packaging and labeling of pipe tobacco and roll-your-own tobacco to better differentiate, on the basis of the packaging and labeling, between these two types of taxable products. In T.D. TTB-78, TTB noted that the tax rate increases adopted in section 701 of the Act resulted in a significant difference between the rate of tax imposed on roll-your-own tobacco ($24.78 per pound) and the rate of tax imposed on pipe tobacco ($2.8311 per pound). Prior to the amendments made by the Act, the two tax rates were the same.
The Bureau further noted that the existing TTB regulations contained no standards to differentiate between roll-your-own tobacco and pipe tobacco beyond a repeat of the statutory definitions. In T.D. TTB-78, we amended these definitions to incorporate the definitional changes contained in the Act. These definitional changes did not include any language which provides objective standards to readily distinguish between roll-your-own tobacco and pipe tobacco. Section 5702(o) of the IRC, as amended by the Act, defines the term “roll-your-own tobacco” as “any tobacco, which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes or cigars, or for use as wrappers thereof.” The term “pipe tobacco” is defined at 26 U.S.C. 5702(n) as “any tobacco which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco to be smoked in a pipe.”
TTB recognizes that the similarity of roll-your-own tobacco and pipe tobacco and the much lower rate on pipe tobacco resulting from the tax rate changes made by the Act created an incentive for persons who roll their own cigarettes to use pipe tobacco. In T.D. TTB-78, the agency noted that there is now a heightened need for more regulatory detail to clarify the difference between the two products. Because both the definition of roll-your-own tobacco and the definition of pipe tobacco require consideration of the packaging and labeling of the product in order to determine the appropriate tax classification and because additional regulatory standards regarding the packaging and labeling were available, TTB amended the regulations to more clearly distinguish between the two products on those bases. With regard to the products' other defining characteristics, TTB stated that it was evaluating analytical methods and other standards that may lead to future rulemaking proposals.
As a result of our rulemaking actions, TTB received six written submissions from four industry members and one consumer organization suggesting specific standards that could be used to distinguish between roll-your-own tobacco and pipe tobacco. According to some of these commenters, such standards are urgently needed because, they allege, the new packaging and labeling regulations are not sufficient to prevent the misrepresentation of roll-your-own tobacco as pipe tobacco.
A representative for Altadis USA, Inc., a manufacturer and importer of pipe tobacco, submitted the most detailed proposal regarding physical standards in comments to Notice No. 95, which were repeated in a separate letter to TTB's Administrator. Stating that it believes the new packaging requirements outlined in Notice No. 95 are only marginally helpful in dealing with the “misclassification problem,” Altadis USA, Inc. proposes that TTB establish standards of physical characteristics for pipe tobacco. It asserts that examination of physical characteristics is necessary to determine whether the product, by virtue of its “appearance” and “type,” is “suitable for use” as tobacco to be smoked in a pipe, as described in the statutory definition of pipe tobacco at 26 U.S.C. 5702(n), or as tobacco for making cigarettes or cigars, as described in the statutory definition of roll-your-own tobacco at 26 U.S.C. 5702(o). This commenter therefore proposes that processed tobacco in its finished form be classified as pipe tobacco only if it meets at least one of the following:
• At least 18% of its weight consists of reducing sugars;
• Moisture content exceeds 22% of its weight;
• Its cut tobacco exceeds
• At least 10% of its weight consists of Latakia, Perique, or Black Tobacco (USDA Type 37) or a combination thereof; or
• At least 20% of its weight consists of flavoring, casing, or other non-tobacco content.
According to the commenter, any processed tobacco product that does not meet any of these criteria cannot be legitimately classified as pipe tobacco and must be classified as roll-your-own tobacco.
TTB notes that this commenter also proposes that TTB take into consideration pre-existing or established brands for pipe tobacco and roll-your-own tobacco. The commenter states that prior to the introduction of the relevant tobacco tax legislation in Congress in January 2009, there were no “crossover brands”, that is, “brands associated with both pipe tobacco and roll-your-own tobacco.” The commenter therefore urged TTB to deem any processed tobacco regularly sold under a pre-existing brand name, trade name, or trademark predominantly associated with roll-your-own tobacco, prior to January 1, 2009, as roll-your-own tobacco. Similarly, any processed tobacco regularly sold under a pre-
A representative of Top Tobacco L.P., a manufacturer of roll-your-own-tobacco, specifically addresses the above commenter's proposed standards for pipe tobacco in a letter to TTB's Administrator. Although the company states that it agrees with the general statement of facts in the submission, it disagrees with the proposed criterion regarding the width of the cut of the tobacco. This commenter states that it does not believe that the width factor can be a reliable indicator of whether or not a product is intended for consumption as roll-your-own tobacco or pipe tobacco because, according to the commenter, tobacco cut at
In response to Notice No. 95, the Pipe Tobacco Council, Inc. (PTC) submitted a comment proposing that pipe tobacco products sold as such prior to January 1, 2009, be exempt from the proposed labeling and packaging regulations. The PTC proposes that manufacturers with such products certify that the products were on the market prior to January 1, 2009, and that TTB create and maintain a database of such certifications. Manufacturers wishing to market any products as pipe tobacco that would be sold to consumers for the first time on or after January 1, 2009, would be required to submit a sample of the finished product to TTB along with a “valid reason why the product should be considered pipe tobacco.” Such reasons could include the product's cut size, casing and flavoring rates, tobacco grades used, cut style, and moisture. Finally, PTC proposes that any brand name or trademark that was ever sold as either a roll-your-own tobacco product or cigarette brand produced and sold after January 1, 2009, should not be classified as pipe tobacco.
A representative of the National Tobacco Company LP (NTC), a manufacturer of both pipe tobacco and roll-your-own tobacco, in a comment to Notice No. 95, states that the constituent tobacco materials used in various tobacco products often overlap in terms of their type and appearance. Therefore, NTC believes that the type of tobacco and the appearance of the tobacco product are not always reliable guides to the product's suitable and intended use. Nonetheless, the commenter does suggest a number of characteristics that could be used to identify pipe tobacco, such as the inclusion of substantial amounts of Cavendish, Latakia, or Perique tobacco, the appearance of a broad-leaf cut tobacco blend, high moisture content, dense packing, burn inhibitors, and block or flake cut. NTC states that the presence of menthol flavoring and the use of blending components such as expanded stem, expanded leaf tobacco, or reconstituted sheet tobacco could indicate that a tobacco product is intended for use as roll-your own tobacco.
In a comment to Notice No. 99 (74 FR 48687), Extension of Package Use-Up Rule for Roll-Your-Own Tobacco and Pipe Tobacco, the consumer organization Campaign for Tobacco-Free Kids states that the proposed packaging regulations do not do enough to prevent the mislabeling of roll-your-own tobacco as pipe tobacco. It urges TTB to establish clear criteria to distinguish between those types of tobacco that may be labeled as pipe tobacco and those that may not. The group suggests that one possibility is to require that any loose tobacco consisting primarily of flue-cured or burley tobacco be labeled and taxed as roll-your-own tobacco.
We are aware that additional regulatory standards to distinguish between roll-your-own tobacco and pipe tobacco, based on physical characteristics, would be beneficial. It is our primary concern that any regulatory distinction drawn between these products be objective and enforceable. To that end, TTB continues to conduct research on the physical characteristics of the products that may be used to effectively distinguish between the two products for tax purposes. We also believe that soliciting comments from the public may assist us in developing objective, enforceable, and not easily subverted distinctions. Accordingly, in this document we are requesting comments on the proposals set forth above, and any additional comments, on the distinguishing physical characteristics of the two products.
We invite comments from interested members of the public on whether the physical standards discussed above under the heading “Comments Received” are appropriate and sufficient for distinguishing between pipe tobacco and roll-your-own tobacco. We also request comments on any additional physical characteristics that could also be used to distinguish between these two tobacco products for tax classification purposes. Furthermore, we invite comments on any particular combination(s) of physical characteristics which would distinguish between pipe tobacco and roll-your-own tobacco. If a commenter can identify a specific list of differentiating physical characteristics, we invite the commenter to opine on what number of the physical characteristics should be present in order for the product to be classified as “pipe tobacco” (
You may submit comments on this advance notice by using one of the following three methods:
•
•
•
Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 106 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not
If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via Regulations.gov, please include the entity's name in the “Organization” blank of the comment form. If you comment via postal mail, please submit your entity's comment on letterhead.
You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or that is inappropriate for public disclosure.
On the Federal e-rulemaking portal, Regulations.gov, we will post, and the public may view, copies of this advance notice, selected supporting materials, and any electronic or mailed comments we receive about this proposal. A direct link to the Regulations.gov docket containing this advance notice and the posted comments received on it is available on the TTB Web site at
All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.
You and other members of the public may view copies of this advance notice, any related supporting materials, and any electronic or mailed comments we receive about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 x 11 inch page. Contact our information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.
Jennifer Berry of the Regulations and Rulings Division drafted this advance notice.
Pension Benefit Guaranty Corporation.
Proposed rule.
This proposed rule would revise the Pension Benefit Guaranty Corporation's regulation on debt collection to conform to the Debt Collection Improvement Act of 1996, the Federal Claims Collection Standards and other legal requirements applicable to the collection of non-tax debts owed to PBGC. This proposed rule would add salary offset and administrative wage garnishment to the collection methods allowed under the current regulation and make other changes to strengthen PBGC's debt collection program.
Comments must be received by September 20, 2010.
Comments may be submitted by any of the following methods:
•
•
•
•
Comments received, including personal information provided, will be posted to
Margaret E. Drake, Attorney, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005-4026; 202-326-4400 (extension 3228). (For TTY/TDD users, call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4400 (extension 3228)).
This proposed rule will revise and replace the PBGC's debt collection regulations found at 29 CFR part 4903 to conform to the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321, 1358 (April 26, 1996), the revised Federal Claims Collection Standards, 31 CFR chapter IX (parts 900 through 904), and other laws applicable to the collection of non-tax debt owed to the Government.
In 1994, PBGC adopted a regulation on debt collection to provide procedures to implement administrative offset, as authorized by the Federal Claims Collection Act of 1966, as amended by the Debt Collection Act of 1982 (31 U.S.C. 3701,
Pursuant to 31 U.S.C. 3716, to utilize the administrative offset tools under DCIA, Federal agencies had to “adopt, without change, regulations on collecting by administrative offset promulgated by the Department of Justice, the Government Accountability Office, or the Department of the Treasury,” or promulgate their own regulations consistent with the regulations issued by the Department of Justice, the General Accountability Office, or the Department of the Treasury. On November 20, 2000, the Department of Justice and the Department of the Treasury revised the FCCS. 65 FR 70390 (Nov. 20, 2000).
This proposed regulation would revise the procedures for the collection of non-tax debts owed to PBGC through administrative offset and tax refund offset. It would adopt the FCCS and supplement it by prescribing procedures consistent with the FCCS, as necessary and appropriate for PBGC operations. The proposed regulation would also provide for the collection of debts via salary offset and the use of administrative wage garnishment. Salary offset is the collection of debt owed by a Federal employee by withholding up to 15 percent of the employee's disposable pay. The procedures for salary offset are governed by 5 U.S.C. 5514, and Office of Personnel Management (OPM) regulations (5 CFR part 550, subpart k). OPM regulations provide for salary offset through the Treasury Offset Program.
As with the PBGC's current debt collection regulation, the proposed regulation would apply to collection of debts to PBGC by employers (
The proposed regulation would not apply to the collection of tax debts, which is governed by the Internal Revenue Code of 1986 (26 U.S.C. 1
Under the proposed regulation, benefits paid by PBGC generally would not be offset, in accordance with the anti-alienation provisions under 29 U.S.C. 1056(d) and 26 U.S.C. 401(a)(13). However, benefits paid by PBGC could be offset under certain limited exceptions from those provisions (
Nothing in the proposed regulation would preclude the use of collection procedures not contained in the regulation. For example, PBGC would be able to collect unused travel advances through setoff of an employee's pay under 5 U.S.C. 5705. Moreover, certain PBGC efforts to obtain payment of debts arising out of activities under ERISA are authorized by and subject to requirements prescribed under other Federal statutes. Whether, and to what extent, such requirements apply to the collection of a debt by PBGC, PBGC's activities will be consistent with such requirements, as well as with any other applicable requirements (
PBGC maintains a system of records to collect debts owed to PBGC by various individuals, PBGC-13, Debt Collection. See 65 FR 25397 (May 1, 2000).
Subpart A of this proposed regulation addresses the general provisions applicable to the collection of non-tax debts owed to PBGC. Proposed § 4903.5 includes procedures for the collection of debts owed to PBGC, other than those subject to recoupment.
Under proposed § 4903.2, PBGC would not be required to duplicate notices or administrative proceedings provided by contract, this proposed regulation, or other laws or regulations. PBGC would not be required to provide a debtor with two hearings on the same issue simply because PBGC used two different collection tools, each of which requires that the debtor be provided with a hearing. For example, if PBGC has provided a debtor with notice of unpaid premium under part 4007, it need not provide additional notice to the debtor before using this regulation to collect the debt owed to PBGC.
Proposed § 4903.4 states that PBGC's rules under part 4000 regarding permissible methods of filing with PBGC, determining dates of filing and computation of time apply for purposes of this regulation.
Subpart B of this proposed regulation describes the procedures to be followed by PBGC when collecting debts owed to it. Among other things, subpart B outlines the due process procedures PBGC would be required to follow when using offset (administrative, tax refund, and salary) to collect a debt owed to it, when garnishing a debtor's non-Federal wages, or before reporting a debt owed to it to a credit bureau. Specifically, PBGC would be required to provide debtors with notice of the amount and type of the debt, the intended collection action to be taken, how a debtor may pay the debt or make alternate payment arrangements, how a debtor could review documents related to the debt, and the consequences to the debtor if the debt is not repaid. Subpart B also describes how a debtor may request a hearing to contest the noticed debt.
Subpart B also explains the circumstances under which PBGC could waive interest, penalties, and administrative costs. Such waivers are permitted only to the extent permitted by law. For example, part 4007 of this chapter does not permit waivers of interest charges on late premium payments. PBGC may provide additional guidance on how interest, penalties, and administrative costs are assessed on particular types of debts.
Subpart B would update PBGC procedures to reflect changes required by DCIA. For example, DCIA centralized the use of offset by requiring agencies to refer debts delinquent for more than 180 days to the Financial Management Service (FMS) of the Treasury Department for offset.
Subpart C of this proposed regulation describes the procedures to be followed when a Federal agency, other than PBGC, wishes to use the offset process to collect a debt from a non-tax payment issued by PBGC as a payment agency. Subpart C governs the process for offsets that occur on a case-by-case basis to collect debts from payments made by PBGC to its employees, its vendors, and others whom PBGC is required or authorized to pay. While centralized offset through the Treasury Offset Program is the Government's primary offset collection tool, this proposed regulation provides the procedures to be used when centralized offset is not otherwise available or appropriate. An agency's use of the non-centralized administrative offset process shall not provide grounds to invalidate any offset on the basis that centralized offset was not used.
PBGC has determined, in consultation with the Office of Management and Budget, that this rule is not a “significant regulatory action” under Executive Order 12866.
PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Organization and functions (Government agencies, Pension insurance, Pensions).
Claims.
For the reasons given above, PBGC proposes to amend 29 CFR parts 4003 and 4903 as follows:
1. The authority citation for part 4003 continues to read as follows:
29 U.S.C. 1302(b)(3)
2. Amend § 4003.32 by removing “§ 4903.33 of this chapter, by a date 60 days (or more) thereafter” and replacing it with “part 4903 of this chapter, by the date”.
3. Amend § 4003.52 by removing “§ 4903.33 of this chapter, by a date 60 days (or more) thereafter” and replacing it with “part 4903 of this chapter, by the date”.
4. Part 4903 is revised to read as follows:
5 U.S.C. 5514; 29 U.S.C. 1302(b); 31 U.S.C. 3701-3719, 3720A; 5 CFR part 550, subpart K; 31 CFR part 285; 31 CFR parts 900-904.
The following terms are defined in § 4001.2 of this chapter: Code, PBGC, and Person. In addition, for purposes of this part:
(a)
(b)
(1) This part applies to PBGC when collecting a debt owed to PBGC; to persons who owe debts to PBGC; to persons controlled by or controlling persons who owe debts to a Federal agency, and to Federal agencies requesting offset of a payment issued by PBGC as a payment agency (including salary payments to PBGC employees).
(2) This part does not apply to debts owed to PBGC being collected through recoupment under subpart E of part 4022 of this chapter. Benefits paid by PBGC generally will not be offset, subject to limited exceptions (
(3) This part does not apply to tax debts, to any debt based in whole or in part on conduct in violation of the antitrust laws, nor to any debt for which there is an indication of fraud or misrepresentation, as described in § 900.3 of the FCCS, unless the debt is returned by the Department of Justice to PBGC for handling.
(4) Nothing in this part precludes the use of other statutory or regulatory authority to collect or dispose of any debt. See, for example, 5 U.S.C. 5705, Advancements and Deductions, which authorizes PBGC to recover travel advances by offset of up to 100 percent of a Federal employee's accrued pay. See, also, 5 U.S.C. 4108, governing the collection of training expenses.
(5) To the extent that provisions of laws, other regulations, and PBGC enforcement policies differ from the provisions of this part, those provisions of law, other regulations, and PBGC enforcement policies apply to the remission or mitigation of fines, penalties, and forfeitures, and to debts arising under ERISA, rather than the provisions of this part.
(c)
(1) PBGC does not intend this regulation to prohibit PBGC from demanding the return of specific property or the payment of its value.
(2) The failure of PBGC to comply with any provision in this regulation will not serve as a defense to the existence of the debt.
(d)
(e)
This part adopts and incorporates all provisions of FCCS. This part also supplements the FCCS by prescribing procedures consistent with FCCS, as necessary and appropriate for PBGC operations.
(a)
(b)
(c)
(a)
(1) The nature and amount of the debt, and the facts giving rise to the debt;
(2) How interest, penalties, and administrative costs are added to the debt, the date by which payment must be made to avoid such charges, and that such assessments must be made unless excused in accordance with 31 CFR 901.9 (see § 4903.6 of this part);
(3) The date by which payment should be made to avoid the enforced collection actions described in paragraph (a)(6) of this section;
(4) PBGC's willingness to discuss alternative payment arrangements and how the debtor may enter into a written agreement to repay the debt under terms acceptable to PBGC (see § 4903.7 of this part);
(5) The name, address, and telephone number of a contact person or office within PBGC;
(6) PBGC's intention to enforce collection by taking one or more of the following actions if the debtor fails to pay or otherwise resolve the debt:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(7) That debts over 180 days delinquent must be referred to the Financial Management Service for the collection actions described in paragraph (a)(6) of this section (see § 4903.10 of this part);
(8) How the debtor may inspect and copy non-privileged records related to the debt;
(9) How the debtor may request a review of PBGC's determination that the debtor owes a debt to PBGC and present evidence that the debt is not delinquent or legally enforceable (see §§ 4903.11(c) and 4903.12(c) of this part);
(10) How a debtor who is an individual may request a hearing if PBGC intends to garnish the debtor's private sector (i.e., non-Federal) wages (see § 4903.14(a) of this part), including:
(i) The method and time period for requesting a hearing;
(ii) That a request for a hearing, timely filed on or before the 15th business day following the date of the mailing of the notice, will stay the commencement of administrative wage garnishment, but not other collection procedures; and
(iii) The name and address of the office to which the request for a hearing should be sent.
(11) How a debtor who is an individual and a Federal employee subject to Federal salary offset may request a hearing (see § 4903.13(e) of this part), including:
(i) The method and time period for requesting a hearing;
(ii) That a request for a hearing, timely filed on or before the 15th day following receipt of the notice, will stay the commencement of salary offset, but not other collection procedures;
(iii) The name and address of the office to which the request for a hearing should be sent;
(iv) That PBGC will refer the debt to the debtor's employing agency or to the Financial Management Service to implement salary offset, unless the employee files a timely request for a hearing;
(v) That a final decision on the hearing, if requested, will be issued at the earliest practicable date, but not later than 60 days after the filing of the request for a hearing, unless the employee requests and the hearing official grants a delay in the proceedings;
(vi) That any knowingly false or frivolous statements, representations, or evidence may subject the Federal employee to penalties under the False Claims Act (31 U.S.C. 3729-3731) or other applicable statutory authority, and criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or other applicable statutory authority;
(vii) That unless prohibited by contract or statute, amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee; and
(viii) That proceedings with respect to such debt are governed by 5 U.S.C. 5514 and 31 U.S.C. 3716.
(12) How the debtor may request a waiver of the debt, if applicable. See, for example, § 4903.6 and § 4903.13(f) of this part.
(13) How the debtor's spouse may claim his or her share of a joint income tax refund by filing Form 8379 with the Internal Revenue Service (see
(14) How the debtor may exercise other rights and remedies, if any, available to the debtor under statutory or regulatory authority under which the debt arose.
(15) That certain debtors and, if applicable, persons controlled by or controlling such debtors, may be ineligible for Federal Government loans, guaranties and insurance, grants, cooperative agreements or other Federal funds (see 28 U.S.C. 3201(e); 31 U.S.C. 3720B, 31 CFR 285.13, and § 4903.18(a) of this part); and
(16) That the debtor should advise PBGC of a bankruptcy proceeding of the debtor or another person liable for the debt being collected.
(b)
(c)
(a)
(b)
(c)
If a debtor is financially unable to pay the debt in a lump sum, PBGC may accept payment of a debt in regular installments, in accordance with the provisions of 31 CFR 901.8.
If PBGC cannot collect the full amount of a debt owed to PBGC, PBGC may compromise the debt in accordance with the provisions of 31 CFR part 902.
If, after pursuing all appropriate means of collection, PBGC determines that a debt owed to PBGC is uncollectible, PBGC may suspend or terminate debt collection activity in accordance with the provisions of 31 CFR part 903. Termination of debt collection activity by PBGC does not discharge the indebtedness.
(a) PBGC will transfer a debt owed to PBGC that is more than 180 days delinquent to the Financial Management Service for debt collection services, a process known as “cross-servicing.” See 31 U.S.C. 3711(g) and 31 CFR 285.12. PBGC may transfer debts owed to PBGC that are delinquent 180 days or less to the Financial Management Service in accordance with the procedures described in 31 CFR 285.12. The Financial Management Service takes appropriate action to collect or compromise the transferred PBGC debt, or to suspend or terminate collection action thereon, in accordance with the statutory and regulatory requirements and authorities applicable to the debt owed to PBGC and the collection action to be taken. See 31 CFR 285.12(b) and 285.12(c)(2). Appropriate action can include, but is not limited to, contact with the debtor, referral of the debt owed to PBGC to the Treasury Offset Program, private collection agencies, or the Department of Justice; reporting of the debt to credit bureaus, and/or administrative wage garnishment.
(b) At least 60 days prior to transferring a debt owed to PBGC to the Financial Management Service, PBGC will send notice to the debtor as required by § 4903.5 of this part. PBGC will certify to the Financial Management Service that the debt is valid, delinquent, legally enforceable, and that there are no legal bars to collection. In addition, PBGC will certify its compliance with all applicable due process and other requirements as described in this part and other Federal laws. See 31 CFR 285.12(i) regarding the certification requirement.
(c) As part of its debt collection process, the Financial Management Service uses the Treasury Offset Program to collect debts owed to PBGC by administrative and tax refund offset. See 31 CFR 285.12(g). Under the Treasury Offset Program, before a Federal payment is disbursed, the Financial Management Service compares the name and taxpayer identification number (TIN) of the payee with the names and TINs of debtors that have been submitted by Federal agencies and states to the Treasury Offset Program database. If there is a match, the Financial Management Service (or, in some cases, another Federal disbursing agency) offsets all or a portion of the Federal payment, disburses any remaining payment to the payee, and pays the offset amount to the creditor agency. Federal payments eligible for offset include, but are not limited to, income tax refunds, salary, travel advances and reimbursements, retirement and vendor payments, and Social Security and other benefit payments.
(a)
(1) In most cases, the Financial Management Service uses the Treasury Offset Program to collect debts owed to PBGC by the offset of Federal payments. See § 4903.10(c) of this part. If not already transferred to the Financial Management Service under § 4903.10 of this part, PBGC will refer debt over 180 days delinquent to the Treasury Offset Program for collection by centralized administrative offset. See 31 U.S.C. 3716(c)(6); 31 CFR part 285, subpart A; and 31 CFR 901.3(b). PBGC may refer to the Treasury Offset Program for offset any debt owed to PBGC that has been delinquent for 180 days or less.
(2) At least 60 days prior to referring a debt owed to PBGC to the Treasury Offset Program, in accordance with paragraph (a)(1) of this section, PBGC will send notice to the debtor in accordance with the requirements of § 4903.5 of this part. PBGC will certify to the Financial Management Service, that the debt is valid, delinquent, and legally enforceable, and that there are no legal bars to collection by offset. In addition, PBGC will certify its compliance with the requirements in this part.
(b)
(1) When centralized administrative offset through the Treasury Offset Program is not available or appropriate, PBGC may collect past-due, legally enforceable debts owed to PBGC through non-centralized administrative offset. See 31 CFR 901.3(c). In these cases, PBGC may offset a payment internally or make an offset request directly to a Federal payment agency.
(2) At least 30 days prior to offsetting a payment internally or requesting a Federal payment agency to offset a payment, PBGC will send notice to the debtor in accordance with the requirements of § 4903.5 of this part. When referring a debt owed to PBGC for offset under this paragraph (b), PBGC will certify that the debt is valid, delinquent, and legally enforceable, and that there are no legal bars to collection by offset. In addition, PBGC will certify its compliance with these regulations concerning administrative offset. See 31 CFR 901.3(c)(2)(ii).
(c)
(d)
(a)
(b)
(c)
(a)
(1) Salary offset is used to collect debts owed to the United States or PBGC by Federal employees. If a Federal employee owes PBGC a debt, PBGC may offset the employee's Federal salary to collect the debt in the manner described in this section. For information on how a Federal agency other than PBGC may collect debt from the salary of a PBGC employee,
(2) Nothing in this part requires PBGC to collect a debt in accordance with the provisions of this section if Federal law allows other means to collect.
(3) PBGC may use the administrative wage garnishment procedure described in § 4903.14 of this part to collect from an individual's non-Federal wages a debt owed to PBGC.
(b)
(c)
(d)
(1) Any adjustment to pay arising out of any employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over 4 pay periods or less;
(2) A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the 4 pay periods preceding the adjustment, and, at the time of such adjustment, or as soon thereafter as practicable, the individual is provided written notice of the nature and the amount of the adjustment and the point of contact for contesting such adjustment; or
(3) Any adjustment to collect a debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practicable, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(e)
(2)
(3)
(4)
(5)
(i) Informal conferences (in person or electronically) with the reviewing official, in which the employee and agency representative will be given a reasonable opportunity to present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee by the reviewing official; or
(iii) Formal written submissions, with an opportunity for oral presentation.
(6)
(7)
(8)
(9)
(10)
(11)
(i) A statement of the facts presented to support the origin, nature, and amount of the debt owed to PBGC;
(ii) The reviewing official's findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, if applicable.
(12)
(f)
(g)
(2)
(3)
(i) If the amount of the debt is equal to or less than 15 percent of the disposable pay, such debt generally will be collected in a lump sum payment;
(ii) Installment deductions will be made over a period of no greater than the anticipated period of employment. An installment deduction will not exceed 15 percent of the disposable pay from which the deduction is made unless the employee has agreed in writing to the deduction of a greater
(4)
(h)
(1) As required by 5 CFR 550.1109, if the employee separates from the payment agency from which PBGC has requested salary offset, the payment agency must certify the total amount of its collection and notify PBGC and the employee of the amounts collected. If the payment agency knows that the employee is entitled to payments from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar payments, it must provide written notification to the agency responsible for making such payments that the debtor owes a debt to PBGC, the amount of the debt, and that PBGC has complied with the provisions of this section. PBGC must submit a properly certified claim to the agency responsible for making such payments before the collection can be made.
(2) If the employee is already separated from employment and all payments due from his or her former payment agency have been made, PBGC may request that money due and payable to the employee from the Civil Service Retirement Fund and Disability Fund, the Federal Employee Retirement System, or other similar funds, be administratively offset to collect the debt. Generally, PBGC will collect such monies through the Treasury Offset Program as described in § 4903.10(c) of this part.
(3) When an employee transfers to another agency, PBGC should resume collection with the employee's new payment agency in order to continue salary offset.
(a) PBGC is authorized to collect debts owed to PBGC from an individual debtor's wages by means of administrative wage garnishment in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. This part adopts and incorporates all of the provisions of 31 CFR § 285.11 concerning administrative wage garnishment, including the hearing procedures described in 31 CFR 285.11(f). PBGC may use administrative wage garnishment to collect a delinquent debt unless the debtor is making timely payments under an agreement to pay the debt in installments (see § 4903.7 of this part). Thirty (30) days prior to initiating an administrative wage garnishment, PBGC will send notice to the debtor in accordance with the requirements of § 4903.5 of this part, including the requirements of § 4903.5(a)(10) of this part. For debts referred to the Financial Management Service under § 4903.10 of this part, PBGC may authorize the Financial Management Service to send a notice informing the debtor that administrative wage garnishment will be initiated and how the debtor may request a hearing as described in § 4903.5(a)(10) of this part. If a debtor makes a timely request for a hearing, administrative wage garnishment will not begin until a hearing is held and a decision is sent to the debtor. PBGC will determine whether the matter requires an oral hearing or if a determination based upon review of the written record is sufficient. PBGC will provide the debtor with a reasonable opportunity for an oral hearing when it determines that the issues in dispute cannot be resolved by a review of the documentary evidence. See 31 CFR 285.11(f)(1)-(4). Even if a debtor's hearing request is not timely, PBGC may suspend collection by administrative wage garnishment in accordance with the provisions of 31 CFR 285.11(f)(5). All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor.
(b) This section does not apply to Federal salary offset, the process by which PBGC collects debts owed to PBGC from the salaries of Federal employees (see § 4903.13 of this part).
PBGC will report delinquent debts owed to PBGC to credit bureaus in accordance with the provisions of 31 U.S.C. 3711(e), 31 CFR 901.4, and the Office of Management and Budget Circular A-129, “Policies for Federal Credit Programs and Non-tax Receivables.” At least 60 days prior to reporting a delinquent debt to a consumer reporting agency, PBGC will send notice to the debtor in accordance with the requirements of § 4903.5 of this part. PBGC may authorize the Financial Management Service to report to credit bureaus those delinquent debts owed to the PBGC that have been transferred to the Financial Management Service under § 4903.10 of this part.
PBGC will transfer delinquent debts owed to PBGC to the Financial Management Service to obtain debt collection services provided by private collection agencies. See § 4903.10 of this part.
PBGC may initiate litigation pursuant to 29 U.S.C. 1302 with delinquent debts on which aggressive collection activity has been taken in accordance with this part and that should not be compromised, and on which collection activity should not be suspended or terminated. Alternatively, PBGC may refer debts owed to PBGC having a principal balance over $100,000, or such higher amount as authorized by the Attorney General, to the Department of Justice for approval of any compromise of a debt or suspension or termination of collection activity. See §§ 4903.8 and 4903.9 of this part; 31 CFR 902.1, 903.1, and part 904. PBGC may authorize the Financial Management Service to refer to the Department of Justice for litigation those delinquent debts that have been transferred to the Financial Management Service under § 4903.10 of this part.
(a) Delinquent debtors are ineligible for and barred from obtaining Federal loans or loan insurance or guaranties. As required by 31 U.S.C. 3720B and 31 CFR 901.6, PBGC will not extend financial assistance in the form of a loan, loan guarantee, or loan insurance to any person delinquent on a debt owed to a Federal agency. PBGC may issue standards under which it may determine that persons controlled by or controlling such delinquent debtors are similarly ineligible in accordance with 31 CFR 285.13(c)(2). This prohibition does not apply to disaster loans. PBGC may extend credit after the delinquency has been resolved. See 31 CFR 285.13.
(b) This section does not apply to loans provided to multi-employer pension plans pursuant to 29 U.S.C. 1431, 29 CFR 4261.1 and 4281.47.
(c) A debtor who has a judgment lien against the debtor's property for a debt to the United States is not eligible to
(a)
(b)
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing, and transportation;
(6) Medical expenses;
(7) Exceptional expenses, if any; and
(8) Any additional materials and information that PBGC may request relating to ability or inability to pay the amount(s) currently required.
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PBGC will promptly refund to a debtor any amount collected on a debt owed to PBGC when the debt is waived or otherwise found not to be owed to the United States, or as otherwise required by law.
(a)
(2) This subpart C does not apply to debts owed to PBGC. See §§ 4903.11 through 4903.13 of this part for offset procedures applicable to debts owed to PBGC .
(3) This subpart C does not apply to the collection of non-PBGC debts through tax refund offset. See 31 CFR § 285.2 for tax refund offset procedures.
(4) Benefits paid by PBGC generally will not be offset, subject to limited exceptions (e.g., in certain fiduciary breach situations).
(b)
(c)
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(b)
(c)
(2)
(3)
(d)
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(e)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a request by New Jersey to revise the State Implementation Plan (SIP) for ozone involving the control of volatile organic compounds (VOCs). The proposed SIP revision consists of two new rules, “Subchapter 26, Prevention of Air Pollution From Adhesives, Sealants, Adhesive Primers and Sealant Primers,” and “Subchapter 34, TBAC Emissions Reporting,” (TBAC means tertiary butyl acetate or t-butyl acetate) and revisions to “Subchapter 23, Prevention of Air Pollution From Architectural Coatings,” “Subchapter 24, Prevention of Air Pollution From Consumer Products,” and “Subchapter 25, Control and Prohibition of Air Pollution by Vehicular Fuels,” of the New Jersey Administrative Codes. The intended effect of this action is to approve control strategies that will result in VOC emission reductions that will help achieve attainment of the national ambient air quality standard for ozone.
Comments must be received on or before August 23, 2010.
Submit your comments, identified by Docket ID number EPA-R02-OAR-2010-0310, by one of the following methods:
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Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4249.
The following table of contents describes the format of this rulemaking:
For detailed information on New Jersey's proposed SIP revision and EPA's evaluation see the Technical Support Document (TSD), prepared in support of today's action. The TSD can be viewed at
On April 9, 2009, Mark N. Mauriello, Commissioner, New Jersey Department of Environmental Protection (NJDEP), submitted to EPA a revision to the New Jersey State Implementation Plan (SIP) that included:
The State adopted these rules on October 30, 2008 and published the adoption in the New Jersey Register on December 1, 2008 (40 New Jersey Register 6769). These rules became operative on December 29, 2008. Also published in the New Jersey Register was a summary of the comments received, the State response to the comments and any changes to the proposed rule resulting from the comments. This SIP revision will provide statewide volatile organic compound (VOC) emission reductions that New Jersey used in the SIP to address reasonable further progress goals and for attaining the 1997 8-hour ozone national ambient air quality standard.
This proposed SIP revision completes the commitment New Jersey made as part of its RACT analysis and 8-hour Ozone Attainment Demonstration that EPA conditionally approved. See 74 FR 22837 (May 15, 2009). If EPA approves this proposed SIP revision, the RACT analysis will be fully approved in its entirety and EPA will replace the conditionally approved RACT in the SIP with a full approval.
The most recent approval of Subchapter 24 occurred on January 25, 2006 (71 FR 4045). EPA had previously approved Subchapter 24 provisions for accepting innovative products exemptions (IPEs), alternative compliance plans (ACPs), and variances that have been approved by the California Air Resources Board (CARB) or other states with adopted consumer product regulations based on the Ozone Transport Commission (OTC) “Model Rule for Consumer Products.” These provisions were fully discussed in previous rulemakings. As part of a previous SIP revision, New Jersey committed to forwarding all innovative product exemptions, alternative compliance plans and variances that the State accepts to EPA Region 2, in order for EPA to be able to determine what the compliance requirements are for all sources regulated by the New Jersey SIP. There have been no changes to these provisions in the current rulemaking and EPA's previous findings still stand.
New Jersey revised Subchapter 24's provisions consistent with the OTC's 2007 model rules that were in turn based on the 2005 CARB rules. The revisions to Subchapter 24 add eleven new categories of consumer products not previously regulated and revise one existing category. Other revisions adopted by New Jersey include adding/clarifying definitions, requiring notifications for products sold toward the end of a sell-through period, prohibiting solid air fresheners or toilet/urinal care products from containing para-dichlorobenzene (a toxic air contaminant/hazardous air pollutant). In addition, any contact adhesive, electronic cleaner, footwear or leather care product, general purpose degreaser, adhesive remover, electrical cleaner, graffiti remover or automotive consumer product manufactured on and after January 1, 2009 is prohibited from containing chlorinated toxic air contaminants. Products manufactured before this date that do not meet the new standards can be sold until December 31, 2011 provided the product or packaging displays the date on which the product was manufactured.
All requirements apply statewide. Subchapter 24 requires that, on or after January 1, 2009, no person shall sell, supply, offer for sale, or manufacture consumer products that contain VOCs in excess of the VOC content limits specified by New Jersey for those products sold in New Jersey. Subchapter 24 includes specific exemptions, as well as registration and product labeling requirements, recordkeeping and reporting requirements, and test methods and procedures. Consumer products that are sold in New Jersey for shipment and use outside of the State of New Jersey are exempt from the VOC content limits. This exemption reflects the intent to regulate only the manufacture and distribution of consumer products that actually emit VOCs into New Jersey's air and not to interfere in the transportation of goods that are destined for use outside of the State.
Subchapter 24 regulates portable fuel containers and/or spouts. New Jersey revised Subchapter 24's provisions consistent with the OTC's 2007 model rule that was in turn based on the 2006 CARB regulation. The revised rule requires that portable fuel containers and/or spouts must now be certified for use and sale by the manufacturer through CARB or the EPA as meeting performance standards or specifically exempted by either CARB or EPA. The revised rule also applies to containers labeled for kerosene use. Other revisions incorporated into Subchapter 24 include: modifying the existing spout regulations in order to improve spillage control; elimination of the fuel flow rate and fill level performance standards; elimination of the automatic shutoff performance standard; and new portable
The revisions to Subchapter 24 expand the number of consumer product categories that are regulated and revised and improved the portable fuel container requirements consistent with the OTC Model rules and CARB rules. These changes will result in additional VOC emission reductions.
EPA has evaluated New Jersey's revisions to Subchapter 24 for consistency with the Act, EPA regulations, and EPA policy. EPA has determined that the revisions to Subchapter 24 meet the section 110 SIP revision requirements of the Act. EPA is proposing to approve this rule.
The OTC States developed a Model Rule entitled “OTC Model Rule For Adhesives and Sealants” dated 2006 which was based on the 1998 CARB reasonably available control technology determination. This RACT determination applied to both the manufacture and use of adhesives, sealants, adhesive primers or sealant primers, in both industrial/manufacturing facilities and in the field. California air districts used this determination to develop regulations for this category. The EPA addressed this source category with a Control Techniques Guideline (CTG) document for Miscellaneous Industrial Adhesives dated September 2008. This CTG was developed in response to the Section 183(e) requirement for EPA to study and regulate consumer and commercial products included in EPA's Report to Congress, “Study of Volatile Organic Compound Emissions from Consumer and Commercial Products—Comprehensive Emissions Inventory.” The section 183(e) miscellaneous industrial adhesives category was limited to adhesives and adhesive primers used in industrial/manufacturing operations and did not include products applied in the field. Therefore, the OTC Model Rule and state efforts in developing individual regulations preceded EPA's CTG for this source category and were broader in applicability.
Subchapter 26 is a new rule based on the OTC model rule that in turn was based on the CARB model rule. Subchapter 26 addresses adhesive, sealants, adhesive primers and sealant primers that are sold in larger containers and used primarily in commercial/industrial applications, but includes residential applications of these products, such as carpet and flooring installations, roofing installations, etc. Small container household adhesives are regulated by “Subchapter 24, Prevention of Air Pollution from Consumer Products.”
Subchapter 26 is applicable to those who sell, supply, offer for sale or manufacture for sale, in New Jersey, any adhesives, sealants, adhesive primer or sealant primer, for use in New Jersey. It is also applicable to any person who uses or applies any adhesive, sealant, adhesive primer or sealant primer for compensation within New Jersey. This rule will not apply to homeowners who may be using these products for home repair and renovations. The VOC limits apply to those products manufactured for sale and use in New Jersey on and after January 1, 2009 and allows for the unlimited sell-through and use of non-compliant products manufactured before January 1, 2009 provided they contain a date or date code when they were manufactured. These limits are identical to those in the OTC and CARB model rules. The limits also apply to all products manufactured after January 1, 2009 in New Jersey for sale and use in New Jersey.
As an alternative to the VOC limits established in Table 1 of Subchapter 26, operators of stationary sources that use or apply adhesives, sealants, or adhesive or sealant primers have the option of using add-on pollution control equipment rather than complying with the Table 1 limits. Requirements applying to air pollution control equipment include: an overall capture and control efficiency of at least 85 percent, by weight; the continuous monitoring of combustion temperature, inlet and exhaust gas temperatures and control device efficiency, depending upon the type of add-on controls used; and the maintenance of operation records to demonstrate compliance.
Subchapter 26 contains requirements for work practices, surface preparation and cleanup solvent composition. Subchapter 26 also includes specific exemptions, as well as registration and product labeling requirements, recordkeeping requirements, and test methods and compliance procedures.
Subchapter 26 contains the required elements for a federally enforceable rule: emission limitations, compliance procedures and test methods, compliance dates and record keeping provisions.
In comparison to the CTG, Subchapter 26 is applicable to all stationary sources including those applications that occur outside of the factory setting, that is, applied in the field. In addition there are provisions that apply to the selling, supplying, offering for sale or manufacture for sale in New Jersey of adhesives, sealants, adhesive primers and sealant primers along with container labeling requirements and product registrations. The VOC content restrictions for these products apply to both their manufacture and application. Stationary sources also have the option of using add-on control equipment that achieves 85 percent control. Subchapter 26 also regulates the VOC content/vapor pressure of surface-preparation and clean-up solvents for which the CTG did not make recommendations for other than including work practices.
EPA recommends that when the states evaluate RACT, as required by section 182(b) when implementing a revised 8-hour ozone standard,
Overall, Subchapter 26: (1) Regulates the same adhesives and adhesive primers as the CTG with the addition of regulating sealants and sealant primers, (2) applies to additional stationary sources, and (3) provides for similar exemptions as the CTG recommends.
EPA has evaluated New Jersey's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA has determined that Subchapter 26 is as effective in regulating this source category as the CTG and proposes to
The EPA revised the definition of VOC to exclude tertiary butyl acetate or t-butyl acetate (TBAC) from VOC emissions limitations or VOC content requirements, but requires that TBAC be considered a VOC for purposes of recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements. See 69 FR 69298 (November 29, 2004). While TBAC is now considered “negligibly reactive,” EPA is concerned that should TBAC usage substantially increase it may contribute significantly to ozone formation even with its lower reactivity. For this reason it is necessary to track and account for TBAC emissions.
New Jersey proposed and adopted a new rule, Subchapter 34, to meet these requirements along with a revised definition of VOC that is consistent with EPA's definition in 40 CFR 51.100(s). It requires manufacturers located in New Jersey who manufacture TBAC or a product containing TBAC, or manufacturers who produce a product containing TBAC that is sold in New Jersey, to report the estimated amount of actual emissions in pounds per ozone-season day and pounds per year that is emitted in New Jersey. The rule also contains methods for calculating the amount of TBAC and recordkeeping requirements.
Generally the rule satisfies EPA requirements and guidance with one exception. The rule requires the reporting of “pounds per ozone-season day,” but only contains a definition for “ozone season.” In the “Background” section of the proposed rulemaking (39 New Jersey Register 4492, November 5, 2007), New Jersey states that in developing the TBAC rule, it based its requirements on the Department of Environment Protection's other air pollution control rules with similar reporting requirements, such as the Subchapter 21 “Emission Statements” rule. EPA suggests that the next time Subchapter 34 is revised, that the definition for “ozone-season” be clarified to refer to peak ozone season as used in Subchapter 21. In the meantime, should there be any confusion with the term ozone-season, users should use the definition in Subchapter 21 “Emission Statements” and as used specifically in Subchapter 21.5(f). With this clarification, Subchapter 34 addresses all EPA requirements necessary to account for TBAC emissions. EPA is proposing to approve this rule.
The term VOC is used in several other New Jersey regulations:
These rules have been amended to include the revised definition of VOC that addresses the TBAC requirements.
EPA has evaluated New Jersey's revised VOC definition for consistency with the Act, EPA regulations, and EPA policy. The revised definition of VOC as used in the above rules is consistent with EPA's definition in 40 CFR 51.100(s).
At this time EPA is only proposing to approve as part of the SIP “Subchapter 23, Prevention of Air Pollution From Architectural Coatings,” and “Subchapter 25, Control and Prohibition of Air Pollution by Vehicular Fuels.” Subchapters 16, 19, and 21 were proposed for approval as part of the SIP on April 23, 2010 (78 FR 21197). Subchapter 22 is not part of the SIP. EPA will act on the other rules in a separate
These new and revised rules will strengthen the SIP by providing additional VOC emission reductions and fulfilling commitments New Jersey made in its 8-hour Ozone Attainment Demonstration SIP (1997 standard) to adopt these rules. EPA is proposing to approve “Subchapter 23, Prevention of Air Pollution From Architectural Coatings,” “Subchapter 24, Prevention of Air Pollution From Consumer Products,” “Subchapter 25, Control and Prohibition of Air Pollution by Vehicular Fuels,” “Subchapter 26, Prevention of Air Pollution From Adhesives, Sealants, Adhesive Primers and Sealant Primers,” and “Subchapter 34, TBAC Emissions Reporting,” of title 7, chapter 27 of the New Jersey Administrative Codes. While the changes made to the VOC definition in the other rules included in this SIP revision are also acceptable, EPA will act on those rules in separate
EPA is also proposing to fully approve New Jersey's RACT analysis as New Jersey has fulfilled its commitment to adopt the identified RACT rules, the last of which are being proposed for approval in this action. These revisions meet the requirements of the Act and EPA's regulations, and are consistent with EPA's guidance and policy. EPA is taking this action pursuant to section 110 and part D of the Act and EPA's regulations.
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:
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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.
Environmental protection, Air pollution control, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Extension of public comment period.
On April 29, 2010, the EPA Administrator signed proposed emission standards for the following source categories: Industrial, Commercial, and Institutional Boilers and Process Heaters located at major sources; Industrial, Commercial, and Institutional Boilers located at area sources; and Commercial and Industrial Solid Waste Incineration Units. These proposed rule documents were published on June 4, 2010. In this action, EPA is extending the comment period for these three related proposed rules until August 23, 2010. This extension will provide additional time for public participation.
Submit your comments, identified by one of the following Docket ID Nos., EPA-HQ-OAR-2002-0058 (Industrial, Commercial, and Institutional Boilers and Process Heaters located at major sources), EPA-HQ-OAR-2006-0790 (Industrial, Commercial, and Institutional Boilers located at area sources), or EPA-HQ-OAR-2003-0119 (Commercial and Industrial Solid Waste Incineration Units), by one of the following methods:
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Questions concerning the proposed rules should be addressed to one of the following contacts:
In today's action, EPA is providing additional time to submit public comment on the following proposed rules: Emissions standards for industrial, commercial, and institutional boilers and process heaters located at major sources (the major source boilers rule); emissions standards for industrial, commercial, and institutional boilers located at area sources (the area source boilers rule); and emissions standards for commercial and industrial solid waste incineration units (the CISWI rule). In the notices of proposed rulemaking for these rules, EPA established a deadline of July 19, 2010, for submission of public comments. On June 9, 2010, EPA extended the public comment period to August 3, 2010. 75 FR 32682. Today, EPA is further extending the deadline for providing comments on these proposed rules to August 23, 2010.
EPA also notes that certain additional materials relating to the maximum achievable control technology (MACT) floors have been added to the dockets for the major and area source boilers proposed rules and the CISWI proposed rule since the date of publication of the proposed rules. At the time of publication of the proposed rules, the docket contained Adobe Acrobat© versions of the spreadsheets used in the MACT floor calculations, as well as associated memoranda describing in detail EPA's calculation of the MACT floor for each proposed set of emissions standards. Since the publication date, EPA has added to the docket the same spreadsheets in Excel format.
The proposed rules were published on June 4, 2010, and can be accessed at the following Web site:
Administrative practice and procedure, Air pollution control, Hazardous substances, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Natural Resources Conservation Service, USDA.
Notice of Intent to Prepare an Environmental Impact Statement.
Pursuant to section 102(2)(c) of the National Environmental Policy Act, 42 U.S.C. 4321-4370d (NEPA), as implemented by the Council of Environmental Quality regulations (40 CFR parts 1500-1508), the Natural Resources Conservation Service (NRCS) announces its intent to prepare a draft Environmental Impact Statement (EIS) for the Logan Northern Canal Reconstruction project.
The purpose of this notice is to alert interested parties regarding the intent to prepare the EIS, to provide information on the nature of the proposed action and possible alternatives, and to invite public participation in the EIS process (including providing comments on the scope of the DEIS, to announce that public scoping meetings will be conducted, and to identify cooperating agency contacts).
Written comments on the scope of the EIS, including the project's purpose and need, the alternatives to be considered, types of issues that should be addressed, associated research that should be considered, and the methodologies to be used in impact evaluations should be sent to NRCS on or before August 31, 2010, at the address below. See the
The building used for the scoping meeting is accessible to persons with disabilities. Any individual who requires special assistance, such as a sign language interpreter, to participate in a scoping meeting should contact Ms. Alana Spendlove, HDR Engineering, (801) 743-7829 or
Scoping materials and the Alternatives Analysis will be available at the meetings and are available on the NRCS Utah Web site (
Comments will be accepted at the public scoping meetings or they may be sent to Mr. Bronson Smart, State Conservation Engineer, Wallace F. Bennett Federal Building, 125 South State Street, Room 4402, Salt Lake City, Utah 84138-1100, or via e-mail at
Mr. Bronson Smart, State Conservation Engineer, Wallace F. Bennett Federal Building, 125 South State Street, Room 4402, Salt Lake City, Utah 84138-1100, or via e-mail at
The Logan and Northern Canal (LN Canal) and the Logan, Hyde Park and Smithfield (LHPS) Canal has provided the citizens of Cache County with irrigation water since the 1890s. During the spring of 2009 a slope failure occurred along a hill side in south Logan, Cache County, UT. As a result of the slope failure, a section of the LN Canal broke away, thus disabling the water distribution capabilities of the canal. Because the canal is part of an important water delivery system, several permitted shareholders have been adversely affected through nondelivery of irrigation water.
NRCS intends to prepare an Environmental Impact Statement (EIS) for proposed repair and/or modifications to the canal system, which occurs in an unincorporated area of Cache County and the communities of Logan, North Logan and Hyde Park, Utah. NRCS is assisting Cache County through the Emergency Watershed Protection (EWP) Program (Code of Federal Regulations, Title 7: Agriculture, Part 624—Emergency Watershed Protection). The EIS will be prepared consistent with Title 390, The National Emergency Watershed Protection Program Manual.
The proposed action is needed to reestablish support delivery of irrigation water to canal system shareholders. The purpose of the project is to restore the water conveyance condition of the canal. The EIS will be prepared in accordance with the requirements of NEPA, its implementing regulations at 40 CFR part 1500-1508, and NRCS regulations that implement NEPA at 7 CFR part 650. The EIS process will evaluate alternatives recommended for further study as a result of previous planning-level studies completed by NRCS and any additional (new) alternatives identified during scoping.
NRCS invites all interested individuals and organizations, public agencies, and Native American Tribes to comment on the scope of the EIS, including the project's purpose and need, alternatives proposed to date, new alternatives that should be considered, specific areas of study that might be needed, and evaluation methods to be used.
Background information including the project purpose and need and alternatives developed to date will be available at the public and agency scoping meetings. Summaries of this information will also be available on the NRCS Web site at
Once the scope of the EIS is confirmed upon the close of scoping, NRCS will begin preparation of the EIS. A summary of comments received during the scoping process will be available on the NRCS Web site.
The proposed action area is located in Cache County, Utah. The study area includes areas that are unincorporated and portions of the incorporated cities of Logan, North Logan, and Hyde Park and focuses on the LN Canal and the LHPS Canal. Both canals originate at the Logan River and generally run parallel to each in a northerly direction. The canal system that will be studied has been divided into four reaches, each having a unique environmental setting and characteristics varying in length. These four reaches are described below.
NRCS has developed four preliminary alternatives for the project. These alternatives are as follows:
• Alternative 1: Divert LN Canal water into the existing LHPS Canal alignment, from Logan River to the mouth of the canyon where is would be taken parallel along Highway 89 (US 89) and to a structure at 400 North and 600 East and placed back into the existing LN Canal.
• Alternative 2: Divert LN Canal water into the existing LHPS Canal alignment, from Logan River to Lundstrom Park, where it would be taken under city streets to 1400 North and approximately 900 East and placed back into the existing LN Canal.
• Alternative 3: Use the existing LN Canal's point of diversion from Logan River, place the water in a conveyance pipeline under Canyon Road to 600 East, then North to the intersection of 400 North and 600 East, and placed back into the existing LN Canal.
• Alternative 4: Divert LN Canal water into the existing LHPS Canal alignment, from Logan River to approximately 3100 North where is would be taken under the city street to 1200 East and placed back into the existing LN Canal, with service to 1400 North.
NRCS will consider any viable alternatives brought forward from initial scoping if such alternatives are substantially different from the four described above. NRCS will also study a No-Action alternative.
Because the project area includes land administered by the USDA Forest Service and because that agency might need to issue a special use permit for activity associated with one or more of the alternatives, the USDA Forest Service will participate in the Logan Northern Canal Reconstruction EIS process as a cooperating agency. Because one or more of the project alternatives could affect waters of the United States as defined by the Clean Water Act, the U.S. Army Corps of Engineers will also act as a cooperating agency.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Colorado Advisory Committee to the Commission will convene at 10 a.m. on Monday, August 16, 2010. The purpose of the meeting is for the committee to participate in orientation and ethics training; discuss recent Commission and regional activities, discuss current civil rights issues in the state and plan future activities. The Committee will also be briefed by the director of a city anti-discrimination agency and a representative of the Denver American Indian Commission on civil rights issues in the state.
Members of the public are entitled to submit written comments; the comments must be received in the regional office by September 16, 2010. The address is Rocky Mountain Regional Office, 1961 Stout Street, Suite 240, Denver, CO 80294. Comments may be e-mailed to
Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten (10) working days before the scheduled date of the meeting.
The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission and FACA.
United States Commission on Civil Rights.
Notice of meeting.
This meeting is open to the public, except where noted otherwise.
Contact Person for Further Information: Lenore Ostrowsky, Acting Chief, Public Affairs Unit (202) 376-8591. TDD: (202) 376-8116.
Persons with a disability requiring special services, such as an interpreter for the hearing impaired, should contact Pamela Dunston at least seven days prior to the meeting at (202) 376-8105. TDD: (202) 376-8116.
National Oceanic and Atmospheric Administration (NOAA), 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 September 20, 2010.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 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 Chris Ellis at NOAA Coastal Services Center, (843) 740-1195 or
This survey will be used by the National Oceanic and Atmospheric's (NOAA's) Coastal Services Center to obtain information from our customers on the location of topographic and
Initial contact with local agencies will be made by telephone to ensure adequate routing of the survey instrument. Information may be submitted via an online survey or by fax/mail or by telephone.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), 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 September 20, 2010.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 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 Kevin Barjenbruch, (801) 524-5113 or
This request is for a regular submission (new collection of information).
This project is a joint effort of the University of Utah (U of U), NOAA's National Weather Service (NWS), the Utah Department of Transportation (UDOT), and NorthWest Weathernet (NWN) to investigate and understand the relationship between meteorological phenomena and road conditions, as well as public understanding and response to available forecast information. The events which impact the Salt Lake City metro area during the winter of 2010-2011 will be examined.
Through the administration of a targeted survey, important details will be gathered regarding: (a) The information that drivers possessed prior to and during a storm, including knowledge of observed and forecast weather conditions; (b) sources of weather and road information; (c) any modification of travel and/or commute plans, based on event information; (d) anticipation and perception of storm impacts and severity; and (e) perception and behavioral response to messages conveyed by the NWS and UDOT, along with their satisfaction of information provided. Analyses of the information gathered will focus on driver knowledge, perceptions, and decisionmaking.
Ultimately, the results of this survey will provide insight on how the Weather Enterprise may more effectively communicate hazard information to the public in a manner which leads to improved response
PEGUS Research, a professional firm, will gather responses via random digit dialing, with survey participants providing responses via landline or cell phone communication.
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
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.
Import Administration, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the Department) and the U.S. International Trade Commission (ITC), the Department is issuing a countervailing duty order on certain potassium phosphate salts (phosphate salts) from the People's Republic of China (PRC).
Andrew Huston, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4261.
In accordance with section 705(d) of the Tariff Act of 1930, as amended (the Act), on June 1, 2010, the Department published its final determination in the countervailing duty investigation of phosphate salts from the PRC.
On July 15, 2010, the ITC notified the Department of its final determination, pursuant to section 705(b)(1)(A)(i) of the Act, that an industry in the United States is materially injured by reason of subsidized imports of subject merchandise from the PRC.
The phosphate salts covered by this order include anhydrous Dipotassium Phosphate (DKP) and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in solution (collectively “phosphate salts”).
TKPP, also known as normal potassium pyrophosphate, Diphosphoric acid or Tetrapotassium salt, is a potassium salt with the formula K
DKP, also known as Dipotassium salt, Dipotassium hydrogen orthophosphate or Potassium phosphate, dibasic, has a chemical formula of K
The products covered by this order include the foregoing phosphate salts in all grades, whether food grade or technical grade. The product covered by this order includes anhydrous DKP without regard to the physical form, whether crushed, granule, powder or fines. Also covered are all forms of TKPP, whether crushed, granule, powder, fines or solution.
For purposes of the order, the narrative description is dispositive, not the tariff heading, American Chemical Society, CAS registry number or CAS name, or the specific percentage chemical composition identified above.
Pursuant to the ITC's final determination, the scope of this investigation, and of this order, has changed. As noted above, the ITC reached a negative determination regarding Monopotassium Phosphate (MKP), a type of salt that was included within the scope of the investigation by the Department and in our final determination. As a result of this negative determination by the ITC, no order can be issued on imports of MKP from the PRC. Therefore, the scope language cited above has been amended from the Department's final determination to remove references to MKP. The rates established by the Department in the final determination were based on adverse facts available findings, none of which were specific to MKP. Thus, there have been no revisions to our final determination rates, or to any other aspect of our final determination, outside of the revised scope definition.
On July 15, 2010, the ITC notified the Department of its final determination, pursuant to section 705(b)(1)(A)(i) of the Act, that an industry in the United States is materially injured as a result of subsidized imports of phosphate salts from the PRC. In its determination, the ITC found three domestic like products (DKP, TKPP, and MKP) covering the scope of subject merchandise subject to the investigation. The ITC made affirmative determinations with respect to DKP and TKPP, and a negative determination with respect to MKP. Since the ITC made different affirmative injury determinations for domestic like products, the Department must instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on entries of DKP and TKPP separately from MKP.
Because the ITC made a negative determination of material injury with respect to MKP, the Department will direct CBP to terminate the suspension of liquidation for entries of MKP from the PRC entered, or withdrawn from warehouse, and to release any bond or other security, and refund any cash deposit, posted to secure the payment of estimated countervailing duties with respect to these entries.
Because the ITC determined that imports of DKP and TKPP from the PRC are materially injuring a U.S. industry, all unliquidated entries of such potassium phosphate salts from the PRC, entered or withdrawn from warehouse, are subject to the assessment of countervailing duties.
In accordance with section 706(a) of the Act, the Department will direct CBP
In accordance with section 706 of the Act, the Department will direct CBP to reinstitute the suspension of liquidation for DKP and TKPP from the PRC, effective the date of publication of the ITC's notice of final determination in the
This notice constitutes the countervailing duty order with respect to phosphate salts from the PRC pursuant to section 706(a) of the Act. Interested parties may contact the Department's Central Records Unit, Room 1117 of the main Commerce building, for copies of an updated list of countervailing duty orders currently in effect.
This notice is issued and published in accordance with sections 705(c)(2), 706(a) and 777(i)(1) of the Act, and 19 CFR 351.211.
Import Administration, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the “Department”) and the International Trade Commission (“ITC”), the Department is issuing an antidumping duty order on certain potassium phosphate salts from the People's Republic of China (“PRC”).
Kathleen Marksberry, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC, 20230; telephone: (202) 482-7906.
In accordance with sections 735(d) and 777(i)(1) of the Tariff Act of 1930, as amended, (“Act”), the Department published the final determination of sales at less than fair value (“LTFV”) in the antidumping investigation of certain potassium phosphate salts from the PRC.
The phosphate salts covered by this order include anhydrous Dipotassium Phosphate (“DKP”) and Tetrapotassium Pyrophosphate (“TKPP”), whether anhydrous or in solution (collectively “phosphate salts”).
TKPP, also known as normal potassium pyrophosphate, Diphosphoric acid or Tetrapotassium salt, is a potassium salt with the formula K
DKP, also known as Dipotassium salt, Dipotassium hydrogen orthophosphate or Potassium phosphate, dibasic, has a chemical formula of K
The products covered by this order include the foregoing phosphate salts in all grades, whether food grade or technical grade. The products covered by this order includes anhydrous DKP without regard to the physical form, whether crushed, granule, powder or fines. Also covered are all forms of TKPP, whether crushed, granule, powder, fines or solution.
For purposes of the order, the narrative description is dispositive, not the tariff heading, American Chemical Society, CAS registry number or CAS name, or the specific percentage chemical composition identified above.
In the
On July 15, 2010, in accordance with section 735(d) of the Act, the ITC notified the Department of its final determination in this investigation. In its determination, the ITC found three domestic like products (DKP, TKPP, and MKP), covering the scope of subject merchandise subject to the investigation. The ITC made affirmative determinations with respect to DKP and TKPP, and a negative determination with respect to MKP. Since the ITC made different affirmative injury determinations for domestic like products, the Department must instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of DKP and TKPP separately from MKP.
Because the ITC made a negative determination of material injury with respect to MKP, the Department will direct CBP to terminate the suspension of liquidation for entries of MKP from the PRC entered, or withdrawn from warehouse, and to release any bond or other security, and refund any cash deposit, posted to secure the payment of estimated antidumping duties with respect to these entries.
Because the ITC determined that imports of DKP and TKPP from the PRC are materially injuring a U.S. industry, all unliquidated entries of such potassium phosphate salts from the PRC, entered or withdrawn from warehouse, are subject to the assessment of antidumping duties.
Therefore, in accordance with section 736(a)(1) of the Act, the Department will direct CBP to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise for all relevant entries of certain potassium phosphate salts from the PRC. These antidumping duties will be assessed on unliquidated entries of DKP and TKPP from the PRC entered, or withdrawn from the warehouse, for consumption on or after March 16, 2010, the date on which the Department published its
Effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins as listed below.
This notice
This notice is published in accordance with sections 735(d) and 736(a) of the Act and 19 CFR 351.210(c) and 351.211.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of initiation of 5-year review; request for information.
NMFS announces a 5-year review of the Baiji/Chinese River Dolphin/Yangtze River Dolphin (Lipotes vexillifer) under the Endangered Species Act of 1973, as amended (ESA). A 5-year review is a periodic process conducted to ensure that the listing classification of a species is accurate and it is based on the best scientific and commercial data available at the time of the review; therefore, we are requesting submission of any such information on the Baiji/Chinese River Dolphin/Yangtze River Dolphin that has become available. Based on the results of this 5-year review, we will make the requisite finding under the ESA.
To allow us adequate time to conduct this review, we must receive your information no later than September 20, 2010. However, we will continue to accept new information about any listed species at any time.
You may submit comments, identified by [0648-XX29], by either of the following methods:
To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Information received in response to this notice and review will be available for public inspection (by appointment, during normal business hours) at the above address.
Larissa Plants (301) 713-1401,
Under the ESA, a list of endangered and threatened wildlife and plant species (list) must be maintained. The list is published at 50 CFR 17.11 (for animals) and 17.12 (for plants). Section 4(c)(2)(A) of the ESA requires that we conduct a review of listed species at least once every 5 years. On the basis of such reviews under section 4(c)(2)(B), we determine whether or not any species should be removed from the list (delisted), or reclassified from endangered to threatened or from threatened to endangered. Delisting a species must be supported by the best scientific and commercial data available and only considered if such data substantiates that the species is neither endangered nor threatened for one or more of the following reasons: (1) the species is considered extinct; (2) the species is considered to be recovered; and/or (3) the original data available when the species was listed, or the interpretation of such data, were in error. Any change in federal classification would require a separate rulemaking process. The regulations (50 CFR 424.21) require that we publish a notice in the
To ensure that the 5-year review is complete and based on the best available scientific and commercial information, we are soliciting new information from the public, concerned governmental agencies, tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of the Baiji/Chinese River Dolphin/Yangtze River Dolphin (
Five-year reviews consider the best scientific and commercial data and all new information that has become available since the listing determination or most recent status review. Categories of requested information include the following: (A) species biology, including, but not limited to, population trends, distribution, abundance, demographics, and genetics; (B) habitat conditions, including, but not limited to, amount, distribution, and suitability; (C) conservation measures that have been implemented that benefit the species; (D) status and trends of threats; and (E) other new information, data, or corrections, including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the list, and improved analytical methods.
If you wish to provide information for this 5-year review, you may submit your information and materials to Angela Somma (see
16 U.S.C. 1531
Import Administration, International Trade Administration, Commerce.
In response to requests from the M&B Metal Products Co., Inc. (“Petitioner”), the Department of Commerce (“Department”) is initiating an anti-circumvention inquiry to determine whether certain imports of steel wire garment hangers from the Socialist Republic of Vietnam (“Vietnam”) are circumventing the antidumping duty order on steel wire garment hangers (“hangers”) from the People's Republic of China (“PRC”).
Irene Gorelik, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-6905.
On May 5, 2010, pursuant to section 781(b) of the Tariff Act of 1930, as amended (“Act”), and 19 CFR 351.225(h), Petitioner submitted requests for the Department to initiate and conduct an anti-circumvention inquiry of two Vietnamese companies to determine whether hangers composed of low-grade steel wire, which are allegedly products of the PRC exported from Vietnam, are circumventing the
In its two requests, Petitioner alleges that PRC manufacturers of subject merchandise have been circumventing the
On May 20, 2010, the Department sent a supplemental questionnaire to Petitioner regarding the requests to initiate the anti-circumvention inquiry. On May 25, 2010, Petitioner provided a response to the Department's supplemental questionnaire. On May 25, 2010, Department met with the foreign market researcher (“FMR”) to discuss certain information contained in the anti-circumvention inquiry requests.
On June 14, 2010, the Department extended the deadline to initiate an anti-circumvention inquiry by 30 days, pursuant to 19 CFR 351.302(b).
The merchandise that is subject to the order is steel wire garment hangers, fabricated from carbon steel wire, whether or not galvanized or painted, whether or not coated with latex or epoxy or similar gripping materials, and/or whether or not fashioned with paper covers or capes (with or without printing) and/or nonslip features such as saddles or tubes. These products may also be referred to by a commercial designation, such as shirt, suit, strut, caped, or latex (industrial) hangers. Specifically excluded from the scope of the order are wooden, plastic, and other garment hangers that are not made of steel wire. Also excluded from the scope of the order are chrome-plated steel wire garment hangers with a diameter of 3.4 mm or greater. The products subject to the order are currently classified under U.S. Harmonized Tariff Schedule (“HTSUS”) subheadings 7326.20.0020 and 7323.99.9060.
Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Section 781(b)(1) of the Act provides that the Department may find circumvention of an antidumping duty order when merchandise of the same class or kind subject to the order is completed or assembled in a foreign country other than the country to which the order applies. In conducting anti-circumvention inquiries, under section 781(b)(1) of the Act, the Department will also evaluate whether: (1) The process of assembly or completion in the other foreign country is minor or insignificant; (2) the value of the merchandise produced in the foreign country to which the antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States; and (3) action is appropriate to prevent evasion of such an order or finding. As discussed below, Petitioner presented evidence with respect to these criteria.
Petitioner states that the
Petitioner states that the hangers subject to its anti-circumvention inquiry requests are made from semi-finished steel wire hangers produced in the PRC, then exported to and completed in Vietnam for re-export to the United States. Petitioner argues that the semi-finished hangers are imported by Vietnamese companies
Petitioner argues that for the purposes of section 781(b)(1)(C) of the Act, the process of manually affixing paper capes and tubes with glue to semi-finished hangers in Vietnam is “minor or insignificant” as defined by the Act. According to Petitioner, the addition of
Petitioner further states that only manual, unskilled labor is required to affix paper capes, tubes and struts to already formed hangers, without the need for equipment or machinery. Petitioner cites to the International Trade Commission's (“ITC”) final report, where the ITC stated that “operations such as the addition of capes and struts and painting the wire are executed by machine in the United States while they may be performed manually in China.”
Petitioner argues that an analysis of the relevant statutory factors of section 781(b)(2) of the Act further supports its conclusion that the Vietnamese processing is “minor or insignificant.” These factors include: (1) Level of investment in the foreign country; (2) level of research and development in the foreign country; (3) nature of the production process in the foreign country; (4) extent of production facilities in the foreign country; and (5) whether the value of the processing in the foreign country represents a small proportion of the value of the merchandise imported into the United States. Petitioner's analysis of these factors, including citations as appropriate, is as follows.
Petitioner claims that information procured from Angang (and alleged PRC affiliate, Gangyuan) indicates that little investment has been or is being made in Vietnam. Further, Petitioner also claims that information procured from Quyky (and alleged PRC affiliates, Ruishan-Taizhou) indicates that little investment has been, or is being, made in Vietnam. Petitioner argues that the business model described by Angang and Quyky indicates that they only serve as hanger completion operations, are export platforms for hangers, and are not integrated production operations. Petitioner further contends that the extent of any investment in Vietnam would be the materials required to complete the hangers before exportation to the United States, such as table and chairs for the workers, glue to affix the paper capes, tubes, and struts, and packing materials. Petitioner cites to the FMR's report for detailed descriptions of the low level of investment at Angang and Quyky. Because the FMR's report is business proprietary information, its specific content cannot be discussed here.
Petitioner states that, similar to the level of investment, because Angang's and Quyky's operations involve manual labor and required little or no machinery or equipment, no research and development are required to set up and operate a company to assemble or complete hangers in Vietnam from Chinese components.
Petitioner argues that the nature of the production process for hangers completed or assembled by Quyky and Angang is based on unskilled manual labor with little machinery or equipment required. Petitioner states that paper capes, tubes, and struts are manually attached with glue to pre-formed hangers that had been imported from partner producers in the PRC. Petitioner notes that once the paper capes and tubes have been affixed to the pre-formed hangers, the completed hangers are packaged into cartons for export to the United States.
As stated above, Petitioner contends that the extent of production in Vietnam is the simple addition of paper capes and tubes to pre-formed, PRC-produced hangers that were imported by Quyky and Angang. Petitioner states that this process requires nothing more than tables and chairs for the unskilled laborers, glue, and packing materials for exportation.
Petitioner argues that the Vietnamese assembly of pre-formed hangers adds little value to the final product exported to the United States. Petitioner argues that the value of the final product is, most significantly, the steel input. Petitioner cites to Gangyuan's responses in the underlying investigation, where it stated that “wire rod is the most significant input in the production of wire hangers.”
Petitioner argues that the evidence, as noted
Petitioner argues that the additional factors contained in section 781(b)(3) of the Act must also be considered in the Department's decision whether to issue a finding of circumvention regarding Vietnamese importation of semi-finished hangers.
Petitioner states that section 781(b)(3) of the Act directs the Department to take into account patterns of trade when making a decision whether to include merchandise assembled or completed in Vietnam within the scope of the
Petitioner states that section 781(b)(3) of the Act directs the Department to take into account whether the manufacturer or exporter of the merchandise is affiliated with the person who uses the merchandise to assemble or complete in the foreign country the merchandise that is subsequently imported into the United States when making decisions on anti-circumvention rulings. With respect to Quyky, Petitioner argues that Quyky has acknowledged that it has a “partner” factory in the PRC, namely Ruishan. Petitioner also notes that, based on publicly available information Ruishan is affiliated with another PRC producer of hangers, Taizhou.
With respect to Angang, Petitioner argues that Angang admits it receives all of its hanger component parts from the PRC and that Angang and Gangyuan are affiliated.
Petitioner states that section 781(b)(3) of the Act directs the Department to take into account whether imports into the foreign country of the merchandise have increased after the initiation of the investigation which resulted in the issuance of such an order or finding when making a decision on anti-circumvention rulings. Petitioner claims it cannot access data concerning trade flows of hangers or hanger components between the PRC and Vietnam because the HTSUS classification for subject merchandise or the components of hangers are contained within larger basket categories that cannot track the trade of the subject merchandise, or components of the subject merchandise, to the degree achieved for imports into the United States. However, Petitioner notes that, while import data of the hangers HTSUS classification between the PRC and Vietnam does not exist, U.S. import data does show that Vietnam was not a source of hangers to the United States until six months after the petition for investigation was filed.
Based on our analysis of Petitioner's anti-circumvention inquiry requests and our May 25, 2010, meeting with the FMR, the Department determines that Petitioner has satisfied the criteria under section 781(b)(2) of the Act to warrant an initiation of a formal anti-circumvention inquiry. In accordance with 19 CFR 351.225(e), if the Department finds that the issue of whether a product is included within the scope of an order cannot be determined based solely upon the application and the descriptions of the merchandise, the Department will notify by mail all parties on the Department's scope service list of the initiation of a scope inquiry, including an anti-circumvention inquiry. In addition, in accordance with 19 CFR 351.225(f)(1)(ii), a notice of the initiation of an anti-circumvention inquiry issued under paragraph (e) of this section will include a description of the product that is the subject of the anti-circumvention inquiry—hangers manufactured from steel that contain the characteristics as provided in the scope of the
With regard to whether the merchandise from Vietnam is of the same class or kind as the merchandise produced in the PRC, Petitioner has presented information to the Department indicating that, pursuant to sections 781(b)(1)(A), the merchandise being exported from Vietnam by Angang and Quyky may be of the same class or kind as hangers produced in the PRC and which are subject to the
With regard to completion or assembly of merchandise in a foreign country, pursuant to section 781(b)(1)(B), Petitioner has also presented information to the Department indicating that the hangers
The Department believes that Petitioner sufficiently addressed the factors described by section 781(b)(2) of the Act regarding whether the processing of pre-formed hangers in Vietnam is minor or insignificant. Specifically, in support of its argument, Petitioner relied on information from the LTFV investigation, the ITC report, and information in the FMR's report. Thus, we find that the information presented by Petitioner supports its requests to initiate an anti-circumvention inquiry. In particular, we find that Petitioner's submissions suggest that: (1) Little investment has been made by either Angang or Quyky company in their respective production of hangers in Vietnam; (2) Angang's and Quyky's Chinese affiliates have fully integrated production facilities in the PRC and, therefore, that research and development presumably takes place in the PRC rather than Vietnam; (3) the gluing of capes to shirt hangers or attaching tubes to strut hangers in Vietnam does not alter the fundamental characteristics of the hanger, nor whether it is subject to the scope of the
With respect to the value of the merchandise produced in the PRC, pursuant to section 781(b)(1)(D) of the Act, Petitioner relied on its information and arguments in the “minor or insignificant process” portion of its anti-circumvention requests to indicate that the value of the steel wire may be significant relative to the total value of a finished hanger with paper accoutrements exported to the United States. We find that the information adequately meets the requirements of this factor, as discussed above, for the purposes of initiating an anti-circumvention inquiry.
Finally, Petitioner argues that, pursuant to section 781(b)(3) of the Act, the Department should also consider the pattern of trade, affiliation, and subsequent import volumes as factors in determining whether to initiate the anti-circumvention inquiry. The U.S. import data submitted by Petitioner suggests that imports of steel wire garment hangers from Vietnam have been rising significantly since the issuance of the
Accordingly, based on Petitioner's submissions, we have determined that we have a sufficient basis to initiate a formal anti-circumvention inquiry concerning the
These anti-circumvention inquiries cover Angang and Quyky only. If, within sufficient time, the Department receives a formal request from an interested party regarding potential circumvention of the
The Department will, following consultation with interested parties, establish a schedule for questionnaires and comments on the issues. The Department intends to issue its final determination within 300 days of the date of publication of this initiation. This notice is published in accordance with section 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits.
Notice is hereby given that the Chicago Zoological Society - Brookfield Zoo, 3300 Golf Road, Brookfield, IL 60513, and the Georgia Aquarium, 225 Baker Street, NW., Atlanta, GA 30313 have been issued permits to import Atlantic bottlenose dolphins (
The permits and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 713-0376;
File No. 15498: Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978) 281-9328; fax (978) 281-9394; and
File No. 15500: Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727) 824-5312; fax (727) 824-5309.
Jennifer Skidmore or Kristy Beard, (301) 713-2289.
On May 3, 2010, notice was published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
International Trade Administration, DOC.
Notice of Federal Advisory Committee meeting.
This notice sets forth the schedule and proposed agenda of a meeting of the Civil Nuclear Trade Advisory Committee (CINTAC). The members will discuss issues outlined in the following agenda.
The meeting is scheduled for Thursday, August 5, 2010, from 1 p.m. to 4 p.m. Eastern Daylight Time (EDT).
The meeting will be held via a teleconference call.
Mr. Frank Caliva, Office of Energy & Environmental Industries, International Trade Administration, Room 4053, 1401 Constitution Ave., NW., Washington, DC 20230. (Phone: 202-482-8245; Fax: 202-482-5665; e-mail:
1. Opening remarks by Chairman.
2. Discussion of Subcommittee final reports on treaties and regulation; civil nuclear technology; domestic competitiveness; government advocacy; and talent and workforce development.
3. Public comment period.
Members of the public wishing to attend the meeting via teleconference must notify Mr. Frank Caliva at the contact information below by 5 p.m. EDT on Tuesday, August 3, 2010, in order to receive the dial-in instructions for the teleconference. Please specify any requests for reasonable accommodation at least five business days in advance of the meeting. Last minute requests will be accepted, but may be impossible to fill.
A limited amount of time will be available for pertinent brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 30 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Caliva and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5 p.m. EDT on Tuesday, August 3, 2010. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration (ITA) may conduct a lottery to determine the speakers.
Any member of the public may submit pertinent written comments concerning the CINTAC's affairs at any time before and after the meeting. Comments may be submitted to the Civil Nuclear Trade Advisory Committee, Office of Energy & Environmental Industries, Room 4053, 1401 Constitution Ave., NW., Washington, DC 20230. To be considered during the meeting, comments must be received no later than 5 p.m. EDT on Tuesday, August 3, 2010, to ensure transmission to the Committee prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting.
Copies of CINTAC meeting minutes will be available within 90 days of the meeting.
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 121 under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, to a five-year ASF sunset provision for magnet sites that would terminate
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize FTZ 54 under the alternative site framework is approved, subject to the FTZ Act and the Board's regulations, including Section 400.28, to the Board's standard 2,000-acre activation limit for the overall general-purpose zone project, and to a five-year ASF sunset provision for magnet sites that would terminate authority for Sites 1, 2, 3 and 5 if not activated by July 31, 2015.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received a complete and adequate application from the Exploratorium for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to pile driving during the Exploratorium's relocation project. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing to issue an IHA to the Exploratorium to incidentally harass, by Level B harassment only, four species of marine mammals during the specified activity within a specific geographic area and is requesting comments on its proposal.
Comments and information must be received no later than August 23, 2010.
Comments on the application and this proposal should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is
Instructions: All comments received are a part of the public record and will generally be posted to
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Michelle Magliocca or Jaclyn Daly, Office of Protected Resources, NMFS, (301) 713-2289.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can
A. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On April 28, 2010, NMFS received an application from the Exploratorium, a nature, science, art and technology museum, requesting an IHA for the take, by Level B harassment, of small numbers of Pacific harbor seals (
The Exploratorium proposes to relocate from the Palace of Fine Arts to Piers 15 and 17, along San Francisco's waterfront. The relocation project would include the installation, repair, and removal of piles at Pier 15, removal of wharf decking between Piers 15 and 17, and expansion of the southern portion of Pier 15. The Exploratorium proposes to install up to 69 new steel piles and repair and remove existing piles by hydraulic or hand-held cutting tools. Because pile driving has the potential to result in marine mammal harassment, NMFS is proposing to issue an IHA for take incidental to this specified activity.
The Exploratorium proposes to relocate from 3601 Lyon Street to Piers 15 and 17, along the Embarcadero of San Francisco's waterfront. The relocation project is scheduled to commence as early as September 2010 and construction would continue throughout a 26-month period. However, of the activities associated with the relocation, only pile driving has the potential to result in marine mammal take and this activity is expected to be complete by the spring of 2011.
To make room for the new Exploratorium, a maximum of 69 various sized steel piles (thirty 72-inch, twenty six 24-inch, and thirteen 20-inch diameter piles) would be installed around Piers 15 and 17 using a vibratory hammer (Table 1). Between two and five steel piles (average of three piles) would be installed daily, depending on their size and the amount of time necessary to install them. Each pile would take approximately 30 minutes to install followed by at least one hour break, the minimum amount of time needed to reset the hammer and next pile. In total, the Exploratorium anticipates conducting 28 hours of pile driving, with 15 hours spent on 72-inch piles, five hours spent on 20-inch piles, and eight hours spent on 24-inch piles. All piles would be installed with an ICE 14122 (or similar) vibratory hammer; however, it may be necessary to seat a pile using an impact hammer. Based on the ground sediments and the depth of pile driving needed, the use of an impact hammer is not anticipated for the smaller 20-inch and 24-inch piles but may be needed for the large diameter 72-inch piles. Should an impact hammer be necessary, the Exploratorium would use a steam or diesel-powered hammer delivering between 80,000 and 110,000 ft-lbs per blow. For 20, 24, and 72-inch piles, the amount of strikes per pile would be limited to 120, 25, and 5, respectively. Sound attenuation devices (e.g., wood block, bubble curtain) would be used during any impact hammering. In addition, impact hammering would not occur between June 1 and November 30 to prevent injury to listed salmonids.
In addition to pile driving, the Exploratorium would repair or remove existing piles (Table 1) and remove existing wharf decking. Existing concrete piles would be removed by cutting them with a hydraulic shear. The shear operates like a knife gate, with hydraulic rams pushing a shear plate through the piling. The cutting shear would be suspended from a crane on deck. In-water noise from this work would be negligible. Pile repair would include installing a fiberglass shell around damaged pile and filling the shell with concrete. The work would be completed by divers using hand tools and does not involve loud noise. Furthermore, there are no marine mammal haul out sites at Piers 15 and 17 and deck height in the area is at elevations generally too high to facilitate marine mammal haul out. Deck removal and expansion would occur outside of habitat for marine mammals. Therefore, removal and expansion of the existing pier decking would not likely result in harassment of marine mammals. Finally, there would be two to ten barges or floats at any given time in the water to support construction activities; however, these would be concentrated in the direct vicinity of Piers 15/17. Because pile repair, pile removal, and use of barges do not release loud sounds into the environment, marine mammal harassment from these activities not anticipated.
During the San Francisco Oakland Bay Bridge Project (SFOBB), the California Department of Transportation (Caltrans), measured vibratory driving sound levels from various pile types, sizes, and locations around San Francisco Bay (Caltrans, 2007). Because no pile driving noise data specific to the Exploratorium project exists, NMFS has determined that hydroacoustic data from the Caltrans SFOBB project are appropriate to use to estimate sound levels from the specified activity. For
In 2007, Caltrans released a report summarizing typical and maximum sound pressure levels (SPLs) measured during vibratory pile driving in San Francisco Bay (Table 2). In summary, Caltrans measured sound pressure levels (SPLs) 5 m from the hammer were below 180 dB root mean square (rms) values. Most of the energy during vibratory pile driving was below 600 Hz. NMFS notes that the vibratory hammers Caltrans used to install the 72-inch pile were the King Kong and Super Kong Driver (Model 600). The hammer the Exploratorium proposes to use is 40% of the energy of the King Kong hammer; therefore, source levels would be lower for the relocation project as hammer noise levels are proportional to blow energy. Vibratory pile driving measurements taken by Caltrans approximately 11-13 kilometers (km) northeast of the Exploratorium in similar depth water indicate that peak sound pressures drop off at a rate of about 7 dB per doubling of distance. For comparison, spherical spreading (20 log R) is characterized by a drop-off rate of 6 dB per doubling of distance. Therefore, it is anticipated that noise from pile driving will dissipate very quickly around the Exploratorium.
Caltrans also conducted hydroacoustic surveys within San Francisco Bay during impact pile driving of similar size piles proposed for use by the Exploratorium (Table 3). Bubble curtains can provide between 5-20 dB reduction in source level; however, this is highly directional and a function of current and device effectiveness (Caltrans, 2009). Therefore, distances to the Level A and Level B harassment isopleths are based on estimated unattenuated source levels. These distances are likely an overestimate of sound levels produced by pile driving using a bubble curtain or wood cap.
Marine mammals with confirmed occurrences in San Francisco Bay are the Pacific harbor seal, California sea lion, harbor porpoise, gray whale, humpback whale (
Pacific harbor seals are found in the coastal and estuarine waters off Baja, California, north to British Columbia, west through the Gulf of Alaska, and in the Bering Sea. The most recent harbor seal counts estimate the California stock of Pacific harbor seals at 34,233 individuals. The population appears to be stabilizing at what may be their carrying capacity and human-caused mortality is declining (NMFS, 2005). The California stock of Pacific harbor seals is not listed under the Endangered Species Act (ESA) nor considered strategic under the MMPA.
In California, approximately 400-500 harbor seal haul out sites are widely distributed along the mainland and offshore islands, including intertidal sandbars, rocky shores, and beaches. The north side of Yerba Buena Island is the closest haul out area to the relocation project, approximately 3 km from Piers 15 and 17. Although harbor seals use this haul out year-round, Yerba Buena Island is not considered a pupping site. In California breeding occurs from March to May, and pupping between April and May depending on local populations. Harbor seals around the new Exploratorium site would likely be transiting to and from their closest haul out (Yerba Buena Island) or opportunistically foraging. Herring spawning events could result in harbor seals congregating and approaching the action area sporadically in an unpredictable manner (pers. comm., M. DeAngelis to M. Magliocca).
Pinnipeds produce a wide range of social signals, most occurring at relatively low frequencies (Southall
California sea lions are found throughout the Eastern North Pacific Ocean in shallow coastal and estuarine waters, ranging from Central Mexico to British Columbia, Canada. Their primary breeding range extends from Central Mexico to the Channel Islands in Southern California. The abundance of the U.S. stock is estimated to be 238,000 sea lions (NMFS, 2007). This stock is approaching carrying capacity and is reaching “optimum sustainable population” limits, as defined by the MMPA. California sea lions are not listed under the ESA nor considered strategic under the MMPA.
Sandy beaches are preferred habitat for haul out sites, but marina docks, jetties, and buoys are often used in California for resting, breeding, and molting. In San Francisco Bay, sea lions haul out on floating docks (e.g., Pier 39 around Fishermen's Wharf) and on buoys throughout the Bay. Breeding season begins in May and lasts until August, with most pups born by July. While onshore, California sea lions often form groups of several hundred animals. No sea lion haulouts are located around the Exploratorium. However, sea lions observed within this area may be transiting to and from nearby piers or opportunistically foraging.
Harbor porpoises have a wide and discontinuous range that includes the North Atlantic and North Pacific. In the Eastern North Pacific, harbor porpoises are found in coastal and inland waters from Point Conception, California to Alaska. Harbor porpoises in U.S. waters are divided into 10 stocks, based on genetics, movement patterns, and management. Any harbor porpoises encountered during the Exploratorium relocation would likely be part of the San Francisco-Russian River stock which has an estimated abundance of 9,189 animals. Abundance of the San Francisco-Russian River stock appeared to be stable or declining between 1988 and 1991 and has steadily increased since 1993, although this increase is not statistically significant. Harbor porpoises are not commonly sighted in San Francisco Bay, but have been observed traveling in small pods of two to three animals on occasion (pers. comm., M. DeAngelis to M. Magliocca). They may occur in the action area during a time when they could be affected by pile driving activities; however, their presence in the vicinity is rare. Harbor porpoises in California are not listed under the ESA nor considered strategic under the MMPA.
Cetaceans are divided into three functional hearing groups: low-frequency, mid-frequency, and high frequency. Harbor porpoises are considered high-frequency cetaceans and their estimated auditory bandwidth (lower to upper frequency hearing cut-off) ranges from 200 Hz to 180 kHz.
Gray whales are large mysticetes, or baleen whales, found mainly in shallow coastal waters of the North Pacific Ocean. Two isolated geographic distributions of gray whales exist: the Eastern North Pacific stock and the Western North Pacific stock. The Eastern North Pacific stock migrates as far south as Baja, California for breeding and calving in the winter and as far north as the Bering and Chukchi Seas for summer feeding. During migration, gray whales will occasionally enter rivers and bays, including San Francisco Bay, along the coast, but in very low numbers. They could potentially be in the action area during pile driving activities. The most recent 2008 stock assessment report estimated the Eastern North Pacific stock to be approximately 18,813 individuals with an increasing population trend over the past several decades. Gray whales were delisted from the ESA in 1994 and are not considered strategic under the MMPA.
Gray whales, like other baleen whales, are in the low-frequency hearing group. There are no empirical data on gray whale hearing; however, Wartzok and Ketten (1999) suggest that mysticete hearing is most sensitive at the same frequencies at which they vocalize. Underwater sounds produced by gray whales range from 20 Hz to 20 kHz (Richardson et al., 1995).
Pile driving at the Exploratorium's new location may temporarily impact marine mammal behavior within the action area due to elevated in-water noise levels. No pinnipeds on haulouts would be affected as the closest haulout is approximately 3 kms away; therefore, in-air noise is not a concern. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) are ubiquitous throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to, (1) social interactions; (2) foraging; (3) orientation; and (4) predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance, or received levels (RLs) will depend on the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor to the sound (Richardson
Temporary or permanent hearing impairment is possible when marine mammals are exposed to very loud sounds. Hearing impairment is measured in two forms: temporary threshold shift (TTS) and permanent threshold shift (PTS). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥ 40 dB (i.e., 40 dB of TTS). Due to proposed mitigation measures and source levels, NMFS does not expect that marine mammals would be exposed to levels that could elicit PTS; therefore, it will not be discussed further.
TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to, in cases of strong TTS, days. For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. Southall et al. (2007) considers a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient to be recognized as an unequivocal deviation and thus a sufficient definition of TTS-onset. Because it is non-injurious, NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider onset TTS to be the lowest level at which Level B harassment may occur. Southall et al. (2007) summarizes underwater
There are limited data available on the effects of non-pulse noise (e.g., vibratory pile driving) on pinnipeds in-water; however, field and captive studies to date collectively suggest that pinnipeds do not strongly react to exposures between 90-140 dB re: 1 microPa; no data exist from exposures at higher levels. Jacobs and Terhune (2002) observed wild harbor seal reactions to high frequency acoustic harassment devices (ADH) around nine sites. Seals came within 44 m of the active ADH and failed to demonstrate any behavioral response when received SPLs were estimated at 120-130 dB. In a captive study (Kastelein, 2006), a group of seals were collectively subjected to data collection and communication network (ACME) non-pulse sounds at 8-16 kHz. Exposures between 80-107 dB did not induce strong behavioral responses; however, a single observation at 100-110 dB indicated an avoidance response at this level. The group returned to baseline conditions shortly following exposure. Southall et al. (2007) notes contextual differences between these two studies noting that the captive animals were not reinforced with food for remaining in the noise fields, whereas free-ranging subjects may have been more tolerant of exposures because of motivation to return to a safe location or approach enclosures holding prey items. While most of the pile driving will be vibratory, a small portion of piles may be driven using an impact hammer (pulse noise) and sound attenuation devices, resulting in anticipated hydroacoustic levels between 164 and 179 dB RMS. Southall et al. (2007) reviewed relevant data from studies involving pinnipeds exposed to pulse noise and concluded that exposures to 150 to 180 dB (approximate source level range for vibratory pile driving) generally have limited potential to induce avoidance behavior.
Vibratory pile driving emits low frequency broadband noise, all of which may be detectable by marine mammals within the action area. However, lower frequency hearing animals such as pinnipeds and gray whales are likely to be able to hear the sound better and farther away than the harbor porpoise, who has a hearing range of 200 Hz-180 kHz (Southall et al., 2007), as most of the energy during vibratory pile is expected to be below 600 Hz (Caltrans 2007). No known data exists for sound levels resulting from the type of vibratory hammer and pile sizes that would be used at the Exploratorium; however, measured sound levels for the “King Kong” vibratory hammer used in Richmond, California ranged between 163 and 180 dB RMS (Illingworth and Rodkin, 2007). Sound levels at the Exploratorium are expected to be substantially lower because the vibratory hammer being used is approximately 40 percent of the energetic capacity of the “King Kong” hammer and will not be used at full capacity. In addition, San Francisco Bay is highly industrialized and masking of the pile driver by other vessels and anthropogenic noise within the action area may, especially in the nearby shipping channel, may also make construction sounds difficult to hear at greater distances. Underwater ambient noise levels along the San Francisco waterfront may be around 133 dB RMS, based on measurements from the nearby Oakland Outer Harbor (Caltrans, 2009). Seals would likely also exhibit tolerance or habituation (as described in Richardson et al., 1999) due to the amount of anthropogenic use within the action area and San Francisco Bay as a whole.
Pacific harbor seal and California sea lion pupping season is outside of the temporal pile driving schedule; therefore, no impacts to reproduction are anticipated. It is expected that marine mammals exposed to pile driving noise would be using the adjacent waters around the Exploratorium's project site for foraging or as a daily migration route between foraging grounds and haul out locations. Harbor porpoises also may use the adjacent waters for foraging and may pass through the area during pile driving. Gray whales are not expected to forage in the activity area, but may display behavioral changes in response to noise if they enter San Francisco Bay and transit or linger around the action area during their annual migration.
Any impacts to marine mammal behavior are expected to be temporary. First, animals may avoid the area around the hammer; thereby reducing exposure. Second, pile driving does not occur continuously throughout the day. As described above, the vibratory hammer only operates for about 30 minutes followed by at least a one hour break. Two to five pilings are anticipated to be driven per day, resulting in a total of 1-2.5 hours of pile driving within any given 24 hour period. Limiting pile driving to less than three hours per day would allow for minimal disruption of foraging or dispersal throughout the habitat. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the pile driving location. In addition, because pile driving is anticipated to be accomplished using only a vibratory hammer, marine mammal injury or mortality is not anticipated. If an impact hammer is used, a protected species observers (PSO) would be on watch to implement pile driver shut down, a mitigation measure designed to prevent animals from being exposed to injurious level sounds. For these reasons, any changes to marine mammal behavior are expected to be temporary and result in a negligible impact to affected species and stocks.
On May 28, 2010, the NMFS Southwest Regional Office concluded section 7 and Essential Fish Habitat (EFH) consultation, under the ESA and Magnuson Stevens Fishery Conservation and Management Act (MSFCMA), respectively, with the U.S. Army Corps of Engineers (Corps) on issuance of a Corps permit to the Exploratorium. In summary, NMFS Southwest Regional Office found that the proposed construction activities may affect ESA-listed fish by generating increased levels of turbidity and sound; however, these impacts are expected to be minor, localized, and short term. As such, NMFS Southwest Regional Office concurred with the Corps determination that impacts from the Exploratorium's project would not result in adverse impacts to ESA-listed fish or their critical habitat. NMFS Southwest Regional Office also determined that the proposed project would adversely affect EFH for various federally-managed species within the Pacific Groundfish, Coastal Pelagic, and Pacific Salmonid Fishery Management Plans; however, they also determined that the proposed action contains adequate measures to avoid, minimize, mitigate, or otherwise offset the adverse effects to EFH.
Marine mammals and fish may occupy the same habitat. Pile driving noise would result in degradation of in-water habitat; however, this impact would be short term and localized. Installation of new piles would be permanent; however, overall site
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
The Exploratorium has proposed the following mitigation measures to help ensure the least practicable adverse impact on marine mammals:
All piles would be installed using a vibratory pile driver unless sufficient depth cannot be reached, at which point an impact hammer may be used. In the event that an impact hammer is necessary, a bubble curtain, wood block, or both would be used as an attenuation device to reduce hydroacoustic sound levels to avoid the potential for injury. With the use of these devices, hydroacoustic source levels are anticipated to be between 164 and 179 dB RMS during impact hammering.
During all in-water impact pile driving, the Exploratorium would establish a preliminary marine mammal safety zone of 500 m around each pile before pile driving commences. No safety zone for vibratory pile driving is necessary as source levels will not exceed the Level A harassment threshold.
If a PSO observes a marine mammal within or approaching the safety zone prior to start of impact pile driving, the PSO would notify the Resident Engineer (or other authorized individual) who would then be required to delay pile driving until the marine mammal has moved outside of the safety zone or if the animal has not been resighted within 15 minutes. If a marine mammal is sighted within or on a path toward the safety zone during pile driving, pile driving should cease until that animal has cleared and is on a path away from the safety zone or 15 minutes has lapsed since the last sighting. In addition, if a marine mammal not authorized to be taken under the IHA (e.g., humpback whale) is observed within the Level B harassment zone (1900 m), pile driving would be delayed until that animal has cleared and is on a path away from the safety zone or 15 minutes has lapsed since the last sighting.
A “soft-start” technique would be used at the beginning of each pile installation to allow any marine mammal that may be in the immediate area to leave before the pile hammer reaches full energy. For vibratory pile driving, the soft-start procedure requires contractors to initiate noise from the vibratory hammer for 15 seconds at 40-60% reduced energy followed by a 1-minute waiting period. The procedure would be repeated two additional times before full energy may be achieved. For impact hammering, contractors would be required to provide an initial set of three strikes from the impact hammer at 40% energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. The soft-start procedure would be conducted prior to driving each pile if vibratory hammering ceases for more than 30 minutes.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
The Exploratorium must designate at least one biologically-trained, on-site individual, approved in advance by NMFS, to monitor the area for marine mammals 30 minutes before, during, and 30 minutes after all impact pile driving activities and call for shut down if any marine mammal is observed within or approaching the designated Level A harassment zone (preliminary set at 500 m). In addition, at least one NMFS-approved PSO would conduct behavioral monitoring in and around the Exploratorium at least two days per week between March 1 and November 30 to estimate take and evaluate the behavioral impacts pile driving has on marine mammals out to the Level B harassment isopleth (1,900 m). Should a non-authorized marine mammal (i.e. humpback whale) be observed at any time in this zone, the aforementioned shut down and delay procedures would be followed.
As set forth in the Exploratorium's application to the Corps, monitoring for herring spawning events would be conducted on a daily basis between December 1 and February 28. This PSO would also monitor for marine mammals within and around the Level B harassment area. In addition to stationing a PSO to monitor for herring, the Exploratorium would cease pile driving for two weeks should a herring spawning event occur (a measure designed to reduce impacts to fish). Pinniped presence during such events can be sporadic and unpredictable; therefore, the requirements set forth under ESA and EFH consultation also minimize and allow for monitoring of impacts to marine mammals.
PSOs would be provided with the equipment necessary to effectively monitor for marine mammals (e.g., high-quality binoculars, compass, and range-finder) in order to determine if animals have entered into the harassment isopleths and to record species, behaviors, and responses to pile driving. PSOs would be required to submit a
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
Based on the Exploratorium's application and subsequent analysis, the impact of the described pile driving operations may result in, at most, short-term modification of behavior by small numbers of marine mammals who are within the action area. Marine mammals may avoid the area or halt any behaviors (e.g., foraging) at time of exposure. Due to the short duration of pile driving per day (1- 2.5 hours), animals are not anticipated to be exposed multiple times per day.
Current NMFS practice regarding exposure of marine mammals to anthropogenic noise is that in order to avoid the potential for injury of marine mammals (e.g., PTS), cetaceans and pinnipeds should not be exposed to impulsive sounds of 180 and 190 dB rms or above, respectively. This level is considered precautionary as it is likely that more intense sounds would be required before injury would actually occur (Southall et al., 2007). Potential for behavioral harassment (Level B) is considered to have occurred when marine mammals are exposed to sounds at or above 160 dB rms for impulse sounds (e.g., impact pile driving) and 120dB rms for non-pulse noise (e.g., vibratory pile driving), but below the aforementioned thresholds. These levels are also considered precautionary.
Based on empirical measurements taken by Caltrans (which are presented in the Description of Specified Activities section above), estimated distances to NMFS current threshold sound levels from pile driving during the Exploratorium's relocation project are presented in Table 4. These estimates are based on the worst case scenario of driving the 72- inch steel piles but would be carried over for all pile driving. Note that despite short distances to the Level A harassment isopleth, the Exploratorium has proposed to implement a preliminary 500-m marine mammal safety zone until empirical pile driving measurements can be made and distances to this threshold isopleth can be verified.
The estimated number of marine mammals potential taken was based on marine mammal monitoring reports prepared by Caltrans during similar activities in San Francisco Bay and on discussions with the NMFS Southwest Regional Office. Caltrans' SFOBB marine mammal monitoring reports were used to estimate the number of pinnipeds near the Exploratorium project area as the SFOBB site and Exploratorium are relatively close to each other and are similar in bathymetric features (e.g., water depth, substrate). However, monitoring conducted for the SFOBB project has been in close proximity to a haul out area, while the Exploratorium project is in an area of high commercial boat activity with no haul out sites. Therefore, the Caltrans data likely overestimates marine mammal abundance for the Exploratorium project area. Based on consultation with the NMFS Southwest Regional Office and review of Caltrans monitoring reports for pile driving activities in San Francisco Bay, the Exploratorium requested a total take of two Pacific harbor seals, one California sea lion, and one gray whale per day of pile driving. Upon further consultation with NMFS Southwest Regional Office, NMFS is proposing to include harbor porpoise as a species potentially taken by pile driving, due to the recorded, albeit infrequent, sightings of harbor porpoises within San Francisco Bay.
The Exploratorium estimates an average of three piles would be driven in a single day. Given 69 piles in total, pile driving would occur for 19 days over the life of the project. Therefore, NMFS is proposing to authorize annual take, by Level B harassment only, of 38 Pacific harbor seals, 19 California sea lions incidental to the Exploratorium's pile driving activities. Due to the infrequent, but potential presence of harbor porpoise and gray whales in the area, NMFS is also proposing to authorize the take of 28 harbor porpoise and five gray whales, annually, based on consultation with the NMFS Southwest Regional Office, NMFS. These numbers indicate the maximum number of animals expected to occur within the Level B harassment isopleth (1,900 m). Estimated and proposed level of take of each species is less than one percent of the affected stock population and therefore is considered small in relation to the population numbers previously set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a number of factors which include, but are not limited to, number of anticipated injuries or mortalities (none of which would be authorized here), number, nature, intensity, and duration of Level B harassment, and the context in which takes occur (e.g., will the takes occur in an area or time of significance for marine mammals, are takes occurring to a small, localized population?).
As described above, marine mammals would not be exposed to activities or sound levels which would result in injury (e.g., PTS), serious injury, or mortality. Pile driving would occur in shallow coastal waters of San Francisco Bay to stocks occurring throughout California, and, for gray whales, the eastern Pacific Ocean. The action area (waters around Piers 15-17) is not considered as providing significant habitat for harbor seals. The closest haulout is 3 kms away on Yerba Buena Island; however, noise levels about NMFS harassment thresholds would only extend to 1,900 m in-water. Marine mammals approaching the action area would likely be traveling or opportunistically foraging. However, marine mammals foraging on herring runs would not be affected by
Marine mammals may be temporarily impacted by pile driving noise. However, marine mammals are expected to avoid the area, thereby reducing exposure and impacts. Further, although the relocation project is expected to take up to two years, installation of the 69 steel piles would only occur for approximately 19 days. Further, San Francisco Bay is a highly industrialized area and species such as harbor seals and California sea lions flourish throughout the Bay. Therefore, animals are likely tolerant or habituated to anthropogenic disturbance, including low level vibratory pile driving operations, and noise from other anthropogenic sources (e.g., vessels in the adjacent shipping lane) may mask construction related sounds. Finally, breeding and pupping season occur outside of the proposed pile driving timeframe; therefore, no disruption to reproductive behavior is anticipated. There is no anticipated effect on annual rates of recruitment or survival of affected marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily determines that the Exploratorium's relocation project will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
No marine mammal species listed under the ESA are anticipated to occur within the action area. Therefore, Section 7 consultation under the ESA is not required.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received two applications from Bluewater Wind (Bluewater) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to pile driving associated with installation of two meteorological data collection facilities (MCDFs); one each off the coast of Delaware and New Jersey. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to Bluewater to incidentally harass, by Level B Harassment only, eight species of marine mammals during the installation of both MDCFs. The IHA would be effective from October 1-November 15, 2010.
Comments and information must be received no later than August 23, 2010.
Comments on the applications should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing e-mail comments is
A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 713-2289, ext 151.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
On May 5, 2010, NMFS received two applications from Bluewater for the taking, by Level B harassment, of marine mammals incidental to pile driving associated with installation of a MDCF in Federal waters approximately 16.5 miles off the coast of Delaware and one approximately 20 miles off the coast of New Jersey during October 2010. Bluewater provided supplemental information to NMFS on June 8, 2010, completing the applications. In summary, to build each MDCF, Bluewater must drive, via an impact hammer, a single 3-meter pile into the seabed which will act as the foundation to elevate and support the data collection device. Pile driving has the potential to result in the take, by Level B harassment, of eight species marine mammals within the action area as it elevates underwater noise levels. The IHA would be effective from October 1-November 15, 2010.
In November 2009, the Mineral Management Service (MMS) issued a lease to Bluewater for construction and operation of MDCFs designed to support future development of Bluewater's planned Delaware and New Jersey Offshore Wind Parks. The purpose of installing the MDCFs is to determine the feasibility of a commercial-scale offshore wind energy park at the proposed project site. Bluewater would collect and analyze at least one full year of meteorological data inclusive of wind speed and direction at multiple heights, information on other seasonal meteorological conditions (
Bluewater has proposed installing a single 3-meter diameter pile foundation to elevate and stabilize a data collection device at two locations; one located in the Outer Continental Shelf (OCS) Official Protraction Diagram (OPD) lease block Salisbury, NJ 18-05 Lease Block 6325 (approximately 16 miles off Delaware) and one at OCS OPD lease block Wilmington, NJ 18-02 Block 6936 (approximately 20 miles off NJ). The mean lower low water depth (MLLW) at the Delaware and New Jersey site is approximately 69 feet (21 m) and 82 feet (25 m), respectively. Sediments in the region of the project area are characterized by terrigenous quartz sand, typical of the majority of sediments found in the Mid-Atlantic to Northern continental shelf. No bedrock (which is difficult to pile drive through) was encountered during Bluewater's sub-bottom profiling operations in 2009 at either location. Pile driving is scheduled to occur during in October 2010; however, given unforeseen construction or weather related delays, NMFS is proposing to make the IHA effective until November 15, 2010.
To install the monopole foundation, Bluewater would use a IHC-S 900 Hydraulic Impact Hammer (or equal) with a maximum rated impact force of 900 kilojoules (KJ). Noise emissions are proportional to hammer blow energy, which is determined by the weight of the falling mass and height of the fall. The IHC-S 900 hammer is a relatively larger hammer than those needed for coastal construction projects. Therefore, source levels generated from this hammer are higher than those from impact hammers used to drive piles in shallow, coastal waters. To be conservative in its acoustic modeling, Bluewater has assumed the full impact force of 900 KJ will be required for construction; however, full force may not be necessary.
Bluewater anticipates it will take approximately 8 to 12 hours to mobilize and demobilize the construction vessels on site; however, only 3-8 of these hours would be spent pile driving. The two MDCFs would not be installed simultaneously; the Delaware MDCF would be installed first followed by the New Jersey MDCF approximately 1-2 weeks later. Because of physical parameters associated with this project (
Bluewater would transport the MDCF foundation materials and equipment to the project site slowly (less than 10 knots) on a deck cargo barge. In addition, installation of the fixed MDCF will also necessitate the use of crew boats, tugs, and crane barge support vessels. Contrary to Bluewater's original proposal during the MMS leasing process, no aircraft will be used during the MDCF installation. Bluewater estimates the construction radius (total work area needed during construction operations centered on the MDCF construction site) would be approximately 450 meters. All vessels would abide by NOAA Fisheries Northeast Regional Viewing Guidelines (
Several species of marine mammals are known to traverse or occasionally inhabit the waters within the action area of project construction activities, including some species listed as threatened or endangered under the
Some marine mammals species are likely to occur within the action area more so than others; however, marine mammal occurrence within the action areas during the 3-8 hours of pile driving is expected to be minimal. During July-October 2009, multiple geophysical and geotechnical (G&G) surveys were conducted by three wind park developers off the coast of New Jersey, all of which had dedicated protected species observers onboard the survey vessel. In general, sightings of marine mammals were uncommon. No marine mammals were sighted during G&G surveys conducted between July 24-August 1, 2009, approximately 17 miles off the New Jersey coast (RPS GeoCet, 2009). Similarly, during nine days of G&G surveys from August 25-September 21, no marine mammals were sighted approximately 12 miles of the southeast coast of New Jersey (AIS, 2009). Only during geophysical surveys conducted by Bluewater from August 14-17, 2009 (within lease block 6936) were marine mammals observed; one group was confirmed
In addition to the G&G survey, from January to December 2008, the New Jersey Department of the Environment (NJDOE) conducted monthly marine mammal and avian surveys off of New Jersey out to approximately 20 nautical miles (NM) (37 km); however, no surveys were conducted in October or November. Shipboard surveys were conducted over 3 days in July and August each and four days in September. Total on-effort transect length per month equaled approximately 417 NM (773 km), 481 NM (891 km), and 440 NM (816 km), respectively. The abundance data from
On May 14, 2009, the NMFS Northeast Region concluded informal ESA consultation with MMS on issuance of lease blocks. In summary, NMFS determined that, given a 1,000 m exclusion zone (
Given the timing of the activity (October) and short duration of pile driving (3-8 hours), North Atlantic right whales would be rare in the action area but are possible. The location of the proposed MDFC is within the main right whale migratory corridor (
Although ESA-listed whales may be present, Bluewater would implement mitigation measures such that no ESA-listed marine mammal, including right whales, would be exposed to sound levels at or above NMFS behavioral harassment threshold for impulsive noise (
There are two morphologically and genetically distinct bottlenose dolphin stocks in the Western Atlantic Ocean: coastal and offshore. Coastal bottlenose dolphins are continuously distributed along the Atlantic coast south of Long Island, New York around the Florida peninsula and along the Gulf of Mexico coast. Initially, a single stock of coastal morphotype bottlenose dolphins was thought to migrate seasonally between New Jersey (summer months) and central Florida based on seasonal patterns in strandings during a large scale mortality event occurring during 1987-1988 (Scott
The coastal stock of bottlenose dolphins resides along the inner continental shelf and around islands preferring waters less than 30-40 meters in depth, typically travel in groups of multiple animals, and may carry soft barnacles (
There are two species of spotted dolphin in the Atlantic Ocean, the Atlantic spotted dolphin (
The common dolphin may be one of the most widely distributed species of cetaceans, as it is found world-wide in temperate, tropical, and subtropical seas. Mitochondrial DNA (mtDNA), and morphometric cranial analysis of North Atlantic specimens suggest that common dolphins in the western North Atlantic are composed of a single panmictic group whereas gene flow between western and eastern North Atlantic animals is limited (Westgate, 2005). Common dolphins can be found in pelagic waters of the Atlantic and Pacific Oceans along the 200- to 2,000-meter (650- to 6,500-foot) isobaths over the continental shelf. They are present in the western Atlantic from Newfoundland to Florida. This species is especially common along shelf edges and in areas associated with Gulf Stream features and sharp bottom relief such as seamounts and escarpments (Reeves
Recent surveys in the Northeast Study Area (New Jersey through Maine) inclusive of the Navy's Atlantic City OPAREA, which includes waters off Delaware through North Carolina, indicate higher abundance of common dolphin in deep, continental slope waters throughout the Mid-Atlantic region, but few, if any, in the vicinity of the project area (DoN, 2007a and b). The best abundance estimate for common dolphins in the western North Atlantic is 120,743 animals (NMFS, 2007).
Atlantic white-sided dolphins are typically found at depths greater than 330 feet (100 meters) in the cool temperate and subpolar waters of the North Atlantic, generally along the continental shelf between the Gulf Stream and the Labrador current to as far south as North Carolina (Bulloch 1993; Reeves
Risso's dolphins are typically an offshore dolphin whose inshore appearance is uncommon (Reeves
There are two species of pilot whales in the western North Atlantic—the Atlantic or long-finned pilot whale,
The harbor porpoise inhabits shallow, coastal waters, often found in bays, estuaries, and harbors. During fall and spring, harbor porpoises are widely dispersed in the North Atlantic from New Jersey to Maine, with lower densities farther north and south. During winter (January to March), intermediate densities of harbor porpoises can be found in waters off New Jersey to North Carolina. They are seen from the coastline to deep waters (>1800 m; Westgate
Harbor seals are the most abundant seals in eastern United States waters and are commonly found in all nearshore waters of the Atlantic Ocean and adjoining seas above northern Florida. However, their “normal” southern range is probably only to the waters off the coast of New Jersey. In late autumn and winter, harbor seals may be at sea continuously for several weeks or more (Reeves
NMFS has preliminarily determined that open-water impact pile driving of the single monopole at each site, as outlined in the project description, has the potential to result in behavioral harassment of marine mammals if they are present near the action area. However, NMFS notes that the limited duration of pile driving (3-8 hours) will minimize the chance marine mammals are exposed to pile driving noise and
Noise from pile driving may harass marine mammals. Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water. Sound is generally characterized by several variables, including frequency and sound level. Frequency describes the sound's pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound level describes the sound's loudness and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. For example, 10-dB yields a sound level 10 times more intense than 1 dB, while a 20 dB level equates to 100 times more intense. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. All underwater noise levels presented here are quantified in decibels relative to 1 micro Pascal (re: 1 microPa), unless otherwise noted.
Marine mammals are continually exposed to many sources of sound. Naturally occurring noise from lightning, rain, sub-sea earthquakes, and biological sounds (
NMFS is in the process of developing guidelines for determining sound pressure level (SPL) thresholds for acoustic harassment based on the best available science. In the interim, NMFS generally considers 180 and 190 dB root mean square (rms) as the level at which cetaceans and pinnipeds, respectively, could be subjected to Level A (injurious) harassment. Level B (behavioral) harassment has the potential to occur if marine mammals are exposed to pulsed sounds (
Bluewater's analyzed pile driving data collected during offshore wind farm construction in Europe to estimate the distances to NMFS' threshold levels during pile driving off Delaware and New Jersey (see sections 2.2 and 2.3 in Bluewater's IHA application. Table 3 below summarizes the estimated distances to NMFS' Level A and B harassment isopleths at each location based on Bluewater's modeling. Water depth is the main contributing factor to any discrepancy between the two proposed sites.
Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very loud sounds. Hearing impairment is measured in two forms: Temporary threshold shift (TTS) and permanent threshold shift (PTS). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥ 40 dB (
TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to, in cases of strong TTS, days. For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. Southall
Of all marine mammals which could be encountered during the very short pile driving period (3-8 hours), bottlenose and spotted dolphins are the species most likely to come within the action area as they are the most abundant. Bottlenose dolphins have been the subject for most TTS studies and can be considered a surrogate for other delphinids (
Bluewater is proposing to pile drive continuously for 3-8 hours. Until recently, previous marine mammal TTS studies have generally supported an equal energy relationship hypothesis whereby as amplitude and duration of sound exposure increase, generally, so does the amount of TS and recovery time (Southall
NMFS has discussed behavioral impacts resulting from impact pile driving for various other projects (
In addition to noise related impacts to marine mammals, NMFS has considered the specified activity includes the impacts from vessel traffic (
MMS's EA also analyzed impacts from operational waste generated from vessels includes bilge and ballast waters, trash and debris, and sanitary and domestic wastes. Operational discharges from construction vessels would be released into the open ocean where they would be rapidly diluted and dispersed, or collected and taken to shore for treatment and disposal. Sanitary and domestic wastes would be processed through on-site waste treatment facilities before being discharged overboard or would be tanked to shore for disposal there. Deck drainage would also be processed prior to discharge. The discharge or disposal of solid debris into offshore waters from OCS structures and vessels is prohibited by the MMS (30 CFR 250.300) and the USCG (MARPOL, Annex V, Public Law 100-220 [101 Statute 1458]). MMS and USCG would enforce such prohibitions; hence, the entanglement in or ingestion of proposed action-related trash and debris by marine mammals would not be expected. Because of the limited amount of vessel traffic and construction activity that would occur from Bluewater's proposed activities, the release of liquid wastes would occur infrequently and cease following completion of tower construction. NMFS agrees with MMS's analysis and, as such, has preliminarily determined that impacts to marine mammals from the discharge of waste materials or the accidental release of fuels are expected to be negligible.
The footprint of the foundation and scour protection (if used) is approximately 0.06 acre (30-foot radius around the monopile foundation) at the MDCF site. Under the terms of the MMS lease, within a period of one year after cancellation, expiration, relinquishment, or other termination of the lease, the lessee shall remove all devices, works and structures from the leased area and restore the leased area to its original condition before issuance of the lease (MMS 2008). Bluewater's consultation with the NMFS under section 7 of the ESA for the MMS lease, completed May 14, 2009, concluded that all effects of the proposed project, including those to habitat, will be insignificant or discountable. Under the MMPA, the same determination on effects to marine mammal habitat applies based on the factors in the earlier consultation.
In order to issue an incidental take authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying
Bluewater has proposed, and NMFS supports, the following mitigation measures designed to eliminate the potential for serious injury/mortality and Level A (injurious) harassment and minimize Level B (behavioral) harassment to marine mammals:
Bluewater would establish and monitor a preliminary 1,000 m Level A harassment exclusion zone (EZ) around the pile driving site in order to eliminate the potential for injury (Level A harassment) of marine mammals. This zone is designed to include all areas where the underwater SPLs are anticipated to equal or exceed 180 dB rms. If the acoustic survey (see Acoustic Monitoring section) determines that the area ensonified by sounds exceeding 180 dB extends beyond the preliminary 1,000-meter EZ, a new safety exclusion zone would be established. Otherwise, the 1,000-meter EZ will remain in place. Triggers and protocol for pile driving shut down for this zone are described below.
Bluewater would also establish a 7-km EZ at the Delaware site for ESA-listed marine mammals (
At least one protected species observer (PSO) stationed onboard the pile-driving vessel would monitor the established 1,000 m EZ for 30 minutes prior to the soft-start of pile driving. If the PSO observes a marine mammal within this zone during this time, the PSO would notify the Resident Engineer (or other authorized individual) who would then delay pile driving. Pile driving would not commence until the PSO confirms that animal has moved out of and on a path away from the EZ or a PSO has not sighted the animal within the EZ for 15 minutes. If a marine mammal approaches or enters the exclusion zone after pile driving has begun, pile driving would cease until the PSO confirms that the animal has moved out of and on a path away from the EZ or the PSO has not sighted the animal within the EZ for 15 minutes. If pile driving ceases for 30 minutes or more, the PSO would observe for an additional 30-minute period before he/she would notify the Resident Engineer (or other authorized individual) that none of the aforementioned situations are triggered and pile driving could commence.
On a separate vessel navigating at approximately 4-5 kms around the pile hammer, PSOs would monitor for large whales. Protocol for pile shut down and delay would follow the procedures described above for the 1,000 EZ.
A ramp-up or soft-start will be used at the beginning of pile driving in order to provide additional protection to marine mammals near the project area by allowing them time to vacate the area prior to the commencement of pile-driving activities. The soft-start requires an initial set of 3 strikes from the impact hammer at 40 percent energy with a one minute waiting period between subsequent 3-strike sets. The procedure will be repeated two additional times. If marine mammals are sighted within the exclusion zone prior to pile-driving, or during the soft start, the Resident Engineer (or other authorized individual) will delay pile driving until the animal has moved outside the exclusion zone and no marine mammals are sighted for a period of 30 minutes.
Bluewater has conducted a sound attenuation device feasibility study and has concluded that traditional devices (
Bluewater would not ramp-up to full power if, at decreased power, the pile can be driven to the desired depth. Recall that source levels are directly related to hammer force. The estimates to the Level A and Level B harassment thresholds are based on maximum hammer force (900 kJ); hence if less energy is used, noise levels would be less than anticipated.
Pile-driving will be limited to day light hours between one-half hour after sunrise and one-half hour prior to sunset. If detection capability of a marine mammal within the EZ is obscured by foul weather (
NMFS has carefully evaluated the applicant's proposed mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
Bluewater is proposing to conduct both visual and acoustic monitoring to better understand impacts to marine mammals from pile driving and estimate take. At least one PSO would be stationed at the pile hammer to monitor, and implement mitigation if necessary, the preliminary 1,000 m EZ and notify the Resident Engineer (or other authorized person) if shut down is necessary. In addition, at least one PSO, in a dedicated visual monitoring vessel circumnavigating the pile hammer at a distance of 4-5 kms, would monitor the
Bluewater would carry out an acoustic study as described in the application (Attachment 1—Underwater Noise Survey Protocol). The plan includes the use of hydrophone array deployed by vessel within the near field (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
As discussed in the
Bluewater has determined that eight species of marine mammals have the potential to be taken, by Level B harassment only, incidental to pile driving. Tables 4 and 5 below provide Bluewater's proposed estimated take levels for Delaware and New Jersey, respectively. For all species, the requested take is less than 1% of the population; therefore, take numbers can be considered small relative to the population size. Although some species have low average and maximum calculated take estimates based on density, these species (
Bluewater would operate support vessels (
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ * * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers the following: number of anticipated mortalities; number and nature of anticipated injuries; number, nature, intensity, and duration of Level B harassment; is the nature of the anticipated takes such that we would expect it to actually impact rates of recruitment or survival; and context in which the takes occur—that is will the takes occur in areas (and/or times) of significance for marine mammals (
Due to the implementation of mitigation measures, no ESA-listed species would be exposed to sound levels exceeding those established by NMFS as indicative of harassment. Therefore, no take of ESA-listed marine mammals are anticipated to occur. Non-ESA listed marine mammals may be exposed temporarily to pile driving noise; however, at each location, pile driving would occur for only 3-8 hours in total. The waters in the mid-Atlantic OCS are not designated as critical habitat for ESA-listed marine mammals, nor do they provide significant habitat for any marine mammal species (
Bluewater has conducted a conservative analysis of estimated sound levels and used these estimates to determine take. Hence, the number of animals potentially taken is also likely an overestimated as it is not anticipated that all species listed in Tables 3 and 4 would be encountered during the short duration of pile driving. The number of animals requested to be taken is considered small (less than 1 percent) when compared to the estimated stock size for each species. Again, no ESA-listed species would be taken based on implementation of the proposed mitigation and monitoring measures and no Level A (injurious) harassment, serious injury, or mortality is anticipated nor would any be authorized in the proposed IHA.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that pile driving conducted by Bluewater during MDCF installation will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
Bluewater is not requesting, nor is NMFS proposing, take of ESA listed species; hence, ESA consultation is not necessary for issuance of the proposed IHA.
On June 2, 2009, the MMS issued an EA and associated Finding of No Significant Impact (FONSI) on the
Defense Security Cooperation Agency, DoD.
Notice.
The Department of Defense is publishing the unclassified text of three section 36(b)(1) arms sales notifications to fulfill the requirements of section 155 of Public Law 104-164, dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following are copies of letters to the Speaker of the House of Representatives, Transmittals 10-09, 10-33, and 10-37 with associated attachments.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 10-09 with attached transmittal, and policy justification.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 10-33 with attached transmittal, policy justification, and Sensitivity of Technology.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 10-37 with attached transmittal, policy justification and Sensitivity of Technology.
National Security Agency, DoD.
Notice.
The National Security Agency hereby gives notice of its intent to grant Doar, Pekuin, Sall Limited Liability Company a revocable, non-assignable, exclusive, license to practice the following Government-Owned inventions as described in the following: U.S. Patent No. 5,656,552 entitled “Method of making a thin conformal high-yielding multi-chip module”; U.S. Patent No. 5,835,912 entitled “Method of efficiency and flexibility storing, retrieving, and modifying data in any language representation”; U.S. Patent No. 6,005,986 entitled “Method of identifying the script of a document irrespective of orientation”; U.S. Patent No. 6,070,175 entitled ” Method of file editing using framemaker enhanced by application programming interface clients”; U.S. Patent No. 6,144,189 entitled “Device for and method of switching and monitoring batteries”; U.S. Patent No. 6,298,144 entitled “Device for and method of detecting motion in an image”; U.S. Patent No. 6,391,744 entitled “Method of fabricating a non-SOI device on an SOI starting wafer and thinning the same”; U.S. Patent No. 6,493,366 entitled “Vertical cavity surface emitting laser with oxidized strain-compensated superlattice of group III-V semiconductor”; U.S. Patent No. 6,519,362 entitled “Method of extracting text present in a color image”; U.S. Patent No. 6,531,414 entitled “Method of oxidizing strain-compensated superlattice of group III-V semiconductor”; U.S. Patent No. 6,704,449 entitled “Method of extracting text from graphical images”; U.S. Patent No. 6,941,013 entitled “Method of image binarization using histogram modeling”; U.S. Patent No. 6,977,212 entitled “Fabricating a semiconductor device using fully cured bisbenzocyclobutene”; U.S. Patent No. 7,232,740 entitled “Method for bumping a thin wafer”; U.S. Patent No. 7,286,359 entitled “Use of thermally conductive vias to extract heat from microelectronic chips and method of manufacturing”; U.S. Patent No. 7,320,937 entitled “Method of reliably electroless-plating integrated circuit die,”; and U.S. Patent No. 7,351,608 entitled “Method of precisely aligning components in flexible integrated circuit module.”
The above-mentioned inventions are assigned to the United States Government as represented by the National Security Agency.
Anyone wishing to object to the grant of this license has fifteen (15) days from the date of this notice to file written objections along with any supporting evidence, if any.
Written objections are to be filed with the National Security Agency Technology Transfer Program, 9800 Savage Road, Suite 6541, Fort George G. Meade, MD 20755-6541.
Marian T. Roche, Director, Technology Transfer Program, 9800 Savage Road, Suite 6541, Fort George G. Meade, MD 20755-6541, telephone (443) 479-9569.
Department of the Navy, DoD.
Notice to add a new system of records.
The Department of the Navy proposes to add a new system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on August 23, 2010, unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Mrs. Miriam Brown-Lam (202) 685-6545.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 2, 2010, to the House Committee on Government Report, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996; 61 FR 6427).
Readiness and Cost Reporting Program (RCRP) Records.
Defense Enterprise Computing Center (DECC), 5450 Carlisle Pike, Mechanicsburg, PA 17050-0975.
Navy active duty and reserve personnel assigned to units within the Navy Expeditionary Combat Command (NECC) organization.
Name, last four digits of Social Security Number (SSN), duty station, Unit Identification Code, rate, grade, designator, Navy Enlisted Code, Navy Officer Billet Classification Code, Active Duty start date, projected rotation Date, End Active Obligated Service, gear issued, qualifications (courses, graduation dates and expirations) and readiness related status information (medical readiness, physical readiness, administrative status, availability, deployability). Additionally the system maintains RCRP user account and authorization information (user identifier, user role/privileges and security questions).
10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 117, Readiness Reporting System: Establishment; Reporting to Congressional Committees; DoD Directive 5149.2, Senior Readiness Oversight Council; DoD Directive 7730.65, Department of Defense Readiness Reporting System; and OPNAV Instruction 3501.36, Defense Readiness Reporting System—Navy (DRRS-N); and E.O. 9397 (SSN) as amended.
RCRP is a readiness reporting system based on Mission Essential Tasks (METs) which provides a standardized, enterprise-wide capability for the Navy Expeditionary Combat Command (NECC) operating forces to measure, display and report the readiness status of personnel, equipment, supply, training and ordnance resources and meet Defense Readiness Reporting System—Navy (DRRS-N) requirements. RCRP provides Commanders at appropriate levels within NECC with the ability to visualize the readiness of their units and subordinate units based on Chain of Command construct and associated permissions/roles in response to mission needs.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses' that appear at the beginning of the Navy's compilation of system of records notices apply to this system.
Records are stored on electronic storage media.
Records about individuals may be retrieved using a combination of name, geographic and demographic characteristics (such as name, last four digits of Social Security Number (SSN), grade, Unit Identification Code, and duty station) as inputs.
Computerized records are maintained in a controlled area accessible only to authorized personnel. Entry to these areas is restricted to those personnel with a valid requirement and authorization to enter. Physical entry is restricted by the use of locks, guards, and administrative procedures. Access to personal information is restricted to those who require the records in the performance of their official duties. Access to personal information is further restricted by the use of passwords and Common Access Card (CAC). All individuals to be granted access to this system of records are to have received Information Assurance and Privacy Act training.
Records are destroyed when 2 years old by erasing, deleting or overwriting.
Commander, Navy Expeditionary Combat Command, 1575 Gator Blvd, Joint Expeditionary Base Little Creek, Virginia Beach, VA 23459-3024.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to Commander, Navy Expeditionary Combat Command, Code (N8), 1575 Gator Blvd, Joint Expeditionary Base Little Creek, Virginia Beach, VA 23459-3024.
The request should be signed and include full name, last four digits of Social Security Number (SSN), grade, Unit Identification Code, duty station and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
Individuals seeking access to records about themselves contained in this system of records should address written inquiries to the Commander, Navy Expeditionary Combat Command, Code (N8), 1575 Gator Blvd, Joint Expeditionary Base Little Creek, Virginia Beach, VA 23459-3024.
The request should be signed and include full name, last four digits of Social Security Number (SSN), grade, Unit Identification Code, duty station and a complete mailing address. The system manager may require an original signature or a notarized signature as a means of proving the identity of the individual requesting access to the records.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual, command personnel, and automated data systems for personnel and training.
None.
Department of the Air Force, DoD.
Notice to alter a system of records.
The Department of the Air Force is proposing to alter a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The proposed action will be effective on August 23, 2010, unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Mr. Charles J. Shedrick, 703-696-6488.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed systems report, as required by 5 U.S.C. 552a(r) of the Privacy Act, was submitted on July 2, 2010, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget pursuant to paragraph 4c of Appendix I to Office of Management and Budget Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996, (February 20, 1996; 61 FR 6427).
Courts-martial and Article 15 Records (December 31, 2008; 73 FR 80376).
Delete entry and replace with “Military Justice and Magistrate Court Records.”
Delete entry and replace with “The Judge Advocate General, Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330-1420.
Headquarters Air Force Personnel Center, 550 C Street W, Randolph Air Force Base, TX 78150-4746.
Headquarters of major commands and all levels down to and including Air Force installations. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.”
Delete entry and replace with “Individuals subject to the Uniform Code of Military Justice and the Magistrate court program.”
Delete entry and replace with “Records of trial by courts-martial, Social Security Number (SSN), military service number, individual's full name, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, and magistrate court proceedings. Records include case summaries, military justice activity reports, witness statements, investigative reports, medical records, personnel records, financial records, reports of investigations, commander directed inquiries, and other reports and records from local, state, and other federal agencies.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force: Powers and duties; delegation by; 10 U.S.C. 8037, Judge Advocate General,
Delete entry and replace with “Investigate, adjudicate and prosecute adverse action cases, Article 138 complaints, and other administrative and criminal actions related to violation of federal law and regulations and state law occurring on and off a military installation; for use by appellate authorities and federal and state licensing authorities; for statistical purposes and to manage case processing; and to provide victims and witnesses information consistent with the requirements of the Victim and Witness Assistance Program, the Victims' Rights and Restitution Act of 1990, and other laws and regulations governing the providing of information to victims and witnesses related to military justice actions and criminal cases and their administrative disposition.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Records from this system may be disclosed to other federal agencies and courts for official purposes, to include a determination of rights and entitlements of individuals concerned.
To a governmental board or agency or health care professional society or organization if such record or document is needed to perform licensing or professional standards monitoring; to medical institutions or organizations for official purposes, wherein the individual has applied for or been granted authority or employment to provide health care services if such record or document is needed to assess the professional qualifications of such member.
To victims and witnesses for the purposes of providing information consistent with the requirements of the Victim and Witness Assistance Program, the Victims' Rights and Restitution Act of 1990, and other laws and regulations governing the providing of information to victims and witnesses related to military justice actions and criminal cases, and their administrative disposition.
The DoD `Blanket Routine Uses' set forth at the beginning of the Air Force's compilation of systems of records notices apply to this system.”
Delete entry and replace with “Paper files and electronic storage media.”
Delete entry and replace with “Magistrate court records are destroyed 3 years after a case is closed.
Article 15 records maintained at base legal offices are destroyed after 3 years or when no longer needed, whichever is later, and forwarded for filing in the member's permanent master personnel record.
Original court-martial records of trials are retired as permanent records. Duplicate copies of general courts-martial records maintained at base legal offices are destroyed 2 years after final review. Duplicate copies of all other courts-martial records maintained at base legal offices are destroyed 1 year after final review.
Records and reports stored in computer databases are maintained until UCMJ action is final or when no longer needed, whichever is later.
Paper records are destroyed by tearing into pieces, shredding, pulping, macerating or burning. Computer records are destroyed by overwriting or permanently deleting.”
Military Justice and Magistrate Court Records.
The Judge Advocate General, Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330-1420.
Headquarters Air Force Personnel Center, 550 C Street W, Randolph Air Force Base, TX 78150-4746.
Headquarters of major commands and all levels down to and including Air Force installations. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Individuals subject to the Uniform Code of Military Justice and the Magistrate court program.
Records of trial by courts-martial, Social Security Number (SSN), military service number, individual's full name, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice, and magistrate court proceedings. Records include case summaries, military justice activity reports, witness statements, investigative reports, medical records, personnel records, financial records, reports of investigations, commander directed inquiries, and other reports and records from local, state, and other federal agencies.
10 U.S.C. 8013, Secretary of the Air Force: Powers and duties; delegation by; 10 U.S.C. 8037, Judge Advocate General, Deputy Judge Advocate General: Appointment and duties; 10 U.S.C. 815(g), Commanding officer's nonjudicial punishment; 10 U.S.C. 854, Record of Trial; 10 U.S.C. 865, Disposition of records after review by the convening authority; 10 U.S.C. 938, Complaints of Wrongs; 18 U.S.C. 3401, Misdemeanors; application of probation laws; AFI 51-201, Administration of Military Justice; AFI 51-202, Nonjudicial Punishment; AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians; and E.O. 9397 (SSN), as amended.
Investigate, adjudicate and prosecute adverse action cases, Article 138 complaints, and other administrative and criminal actions related to violation of federal law and regulations and state law occurring on and off a military installation; for use by appellate authorities and federal and state licensing authorities; for statistical purposes and to manage case processing; and to provide victims and witnesses information consistent with the requirements of the Victim and Witness Assistance Program, the Victims' Rights and Restitution Act of 1990, and other laws and regulations governing the providing of information to victims and witnesses related to military justice actions and criminal cases and their administrative disposition.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Records from this system may be disclosed to other federal agencies and courts for official purposes, to include a determination of rights and entitlements of individuals concerned.
To a governmental board or agency or health care professional society or organization if such record or document is needed to perform licensing or professional standards monitoring; to medical institutions or organizations for official purposes, wherein the individual has applied for or been granted authority or employment to provide health care services if such record or document is needed to assess the professional qualifications of such member.
To victims and witnesses for the purposes of providing information consistent with the requirements of the Victim and Witness Assistance Program, the Victims' Rights and Restitution Act of 1990, and other laws and regulations governing the providing of information to victims and witnesses related to military justice actions and criminal cases, and their administrative disposition.
The DoD ‘Blanket Routine Uses’ set forth at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Paper files and electronic storage media.
Records are retrieved by name, Social Security Number (SSN), or military service number.
Records are accessed by authorized personnel as necessary to accomplish their official duties. Paper records are stored in vaults and locked rooms or cabinets. Computer records have access controls, to include password protection and encryption. Physical servers reside in an office space behind cyber lock.
Magistrate court records are destroyed 3 years after a case is closed.
Article 15 records maintained at base legal offices are destroyed after 3 years or when no longer needed, whichever is later, and forwarded for filing in the member's permanent master personnel record.
Original court-martial records of trials are retired as permanent records. Duplicate copies of general courts-martial records maintained at base legal offices are destroyed 2 years after final review. Duplicate copies of all other courts-martial records maintained at base legal offices are destroyed 1 year after final review.
Records and reports stored in computer databases are maintained until UCMJ action is final or when no longer needed, whichever is later.
Paper records are destroyed by tearing into pieces, shredding, pulping, macerating or burning. Computer records are destroyed by overwriting or permanently deleting.
The Judge Advocate General, Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330-1420.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Judge Advocate General, Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330-1420.
Individuals should provide their full name and Social Security Number (SSN) and/or military service number; unit of assignment; date of trial; type of court; date of discharge action; and date of punishment imposed in the case of Article 15 action may also be necessary, as appropriate.
Individuals seeking to access records about themselves contained in this system should address requests to the Judge Advocate General, Headquarters United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330-1420.
Individuals should provide their full name and Social Security Number (SSN) and/or military service number; unit of assignment; date of trial; type of court; date of discharge action; and date of punishment imposed in the case of Article 15 action may also be necessary, as appropriate.
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 33-332; 32 CFR Part 806b; or may be obtained from the system manager.
Information from almost any source can be included if it is relevant and material to the proceedings. These include, but are not limited to, witness statements; police reports; reports from local, state, and federal agencies; information submitted by an individual making an Article 138 complaint; Inspector General investigations; and commander directed inquiries.
Parts of this system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a component of the agency that performs as its principle function any activity pertaining to the enforcement of criminal laws.
Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection 5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of the information, the individual will be provided access to the information exempt to the extent that disclosure would reveal the identity of a confidential source.
An exemption rule for this record system has been promulgated in accordance with the requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 806b.
Department of the Air Force, DOD.
Notice to amend a system of records.
The Department of the Air Force is proposing to amend a system of records notice in its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The changes will be effective on August 23, 2010, unless comments are received that would result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Mr. Charles Shedrick at (703) 696-6488.
The Department of the Air Force systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Cable Affairs Personnel/Agency Records (June 11, 1997; 62 FR 31793)
Delete entry and replace with “Intercontinental Ballistic Missile Cable Affairs Offices at missile bases reporting to Headquarters Air Global Strike Command. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.”
Delete entry and replace with “10 U.S.C. 8013, Secretary of the Air Force: powers and duties; delegation by; and AFI 21-202, Volume 1, Missile Maintenance Management.”
Delete entry and replace with “Records may be retrieved by name, home address and telephone number.”
Delete entry and replace with “Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030. Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to the Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030, or to the Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.
Request should include full name (First, M.I. and Last Name), home address, home telephone number and reason for your request.”
Delete entry and replace with “Individuals seeking to access records about themselves contained in this system should address requests to the Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030, or to the Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.
The request should include full name (First, M.I. and Last Name) mailing address and primary and alternate telephone numbers.”
Cable Affairs Personnel/Agency Records
Intercontinental Ballistic Missile Cable Affairs Offices at missile bases reporting to Headquarters Air Global Strike Command. Official mailing addresses are published as an appendix to the Air Force's compilation of systems of records notices.
Non-United States Air Force personnel/agencies that cross or could cross, inundate, or otherwise affect the Hardened Intersite Cable System (HICS) and/or its rights-of-way (ROW). The personnel/agencies include landowners, tenants, highway/road departments, public and private utility companies, contractors, farm agencies (Federal, State, and local), municipal offices, and railroads.
Records reflecting information on personnel/agencies who affect, or are affected by, the Hardened Intersite Cable System and its rights-of-way and/or actions on the Hardened Intersite Cable System and its rights-of-way.
Landowners and/or tenants information will include name, home address and home telephone number.
10 U.S.C. 8013, Secretary of the Air Force: powers and duties; delegation by; and AFI 21-202, Volume 1, Missile Maintenance Management.
Used to track and monitor all agency activities that affect the Hardened Intersite Cable System and its rights-of-way (such as highway crossings, utility crossings, construction, earth moving,
Also used to maintain contact with personnel/agencies to coordinate Hardened Intersite Cable System or Hardened Intersite Cable System rights-of-way maintenance/construction actions performed by the United States Air Force (USAF) or USAF contractors.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, these records contained therein, may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD `Blanket Routine Uses' published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Maintained in file folders and electronic storage media.
Records may be retrieved by name, home address and telephone number.
Records are accessed by person(s) responsible for servicing the record system in performance of their official duties and by authorized personnel who are properly screened and cleared for need-to-know. Records are stored in locked rooms and cabinets. Those in computer storage devices are protected by computer system software.
Retained in office files until no longer needed for reference. Paper records are destroyed by tearing into pieces, shredding, pulping, macerating or burning. Computer records are destroyed by erasing, deleting, or overwriting.
Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030.
Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.
Individuals seeking to determine whether this system of records contains information on themselves should address inquiries to the Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030, or to the Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.
Request should include full name (First, M.I. and Last Name), home address, home telephone number and reason for your request.
Individuals seeking to access records about themselves contained in this system should address requests to the Director of Maintenance, Deputy Chief of Staff/Logistics, Headquarters United States Air Force, 1030 Air Force Pentagon, Washington, DC 20330-1030, or to the Chief, Nuclear Command, Control and Communications Branch, Headquarters Air Force Global Strike Command/A6ON, 414 Curtiss Road, Suite 227, Barksdale Air Force Base, LA 71110-2455.
The request should include full name (First, M.I. and Last Name) mailing address and primary and alternate telephone numbers.
The Air Force rules for accessing records, and for contesting and appealing initial agency determinations are published in Air Force Instruction 37-132; 32 CFR part 806b; or may be obtained from the system manager.
Survey information obtained through replies from personnel/agencies as defined in categories of individuals above.
None.
Department of Education.
The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13).
Interested persons are invited to submit comments on or before August 23, 2010.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503, be faxed to (202) 395-5806 or e-mailed to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary
Requests for copies of the information collection submission for OMB review may be accessed from the RegInfo.gov Web site at
Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Department of Education.
The Director, Information Collection Clearance Division, 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 September 20, 2010.
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 Director, Information Collection Clearance Division, 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,
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 Director, Information Collection Clearance Division, 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 September 20, 2010.
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 Director, Information Collection Clearance Division, 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,
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
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on DOE's request the Office of Management and Budget (OMB) to extend for three years the emergency Information Collection Request Title: OE Recovery Act Financial Assistance Grants, OMB Control No. 1910-5149 that DOE is submitting to OMB pursuant to the Paperwork Reduction Act of 1995. 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 respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be received on or before August 23, 2010. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent to:
Requests for additional information or copies of the information collection instrument and instructions should be directed to Matthew Grosso at
This information collection request contains: (1) OMB No. 1910-5149; (2)
Title V, Subtitle E of the Energy Independence and Security Act (EISA), Pub. L. 110-140.
Office of the General Counsel, DOE.
Notice of extension of public comment period for reply comments.
On May 11, 2010, the Department of Energy (DOE) published in the
DOE will accept reply comments, data, and information regarding the National Broadband Plan RFI: Data Access and the National Broadband Plan RFI: Communications Requirement received no later than August 9, 2010.
Any comments submitted must identify the National Broadband Plan RFI: Data Access or the National Broadband Plan RFI: Communications Requirement, as appropriate. Comments may be submitted using any of the following methods:
•
•
•
Ms. Maureen C. McLaughlin, Senior Legal Advisor to the General Counsel (202) 586-5281;
On May 11, 2010, the DOE released two RFIs in the
Given the high volume of comment submission and the apparent public interest, the DOE has determined that an extension of the public reply comment period is appropriate and is hereby extending the reply comment period. DOE will consider any comments received by August 9, 2010 and deems any comments received between July 12, 2010 and July 22, 2010 to be timely submitted.
Take notice that on July 13, 2010, El Paso Natural Gas Company (El Paso), P.O. Box 1087, Colorado Springs, Colorado 80944, filed in Docket No. CP10-470-000, an application pursuant to section 7 of the Natural Gas Act (NGA) and Part 157 of the Commission's regulations, requesting authorization to construct and operate replacement pipeline segments across the San Francisco River in Greenlee County, Arizona, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may also be viewed on the Commission's Web site at
Any questions regarding this application should be directed to Susan C. Stires, Director, Regulatory Affairs, El Paso Natural Gas Company, P.O. Box 1087, Colorado Springs, Colorado 80944, or by calling (719) 667-7514 (telephone) or (719) 667-7534 (fax),
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Motions to intervene, protests and comments may be filed electronically via the internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
On April 19, 2010, Copper Valley Electric Association, Inc. filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Silver Lake Hydroelectric Project, located on Silver Lake and Duck River, in the Valdez-Cordova Census Area, Alaska. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A 400- to 600-foot-long, 100- to 125-foot-high roller-compacted concrete dam constructed at the outfall of Silver Lake to Duck River; (2) Silver Lake, with a surface area of 1,678 acres and a storage capacity of 165,200 acre-feet at elevation 425 feet mean sea level (msl)
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The existing Natural Dam Hydroelectric Project consists of: (1) A 230-foot-long, 3-foot-high concrete dam with a 155-foot-long spillway section equipped with a 2.2-foot-high inflatable rubber crest gate with a deflated crest elevation of 394.0 feet National Geodetic Vertical Datum (NGVD), and a 72-foot-long gated section equipped with 7 steel bulkhead headgates; (2) a 180-foot-long auxiliary dam/spillway with a crest elevation of 397.3 feet NGVD; (3) a 570-acre impoundment with a normal water surface elevation of 396.0 feet NGVD; (4) a 152-foot-long headpond with headgates connected to a power flume along the right bank of the river; (5) a 570-foot-long bypassed reach; (6) a powerhouse containing three generating units with a total installed capacity of 1,020 kW; (7) transformers located in a transformer yard adjacent to the north wall of the Powerhouse; and (8) other appurtenances.
Cellu Tissue Corporation proposes to: (1) Operate the project in a run-of-river mode with a minimum impoundment elevation of 395.85 feet; (2) maintain a minimum bypass flow of 77 cubic feet per second (cfs) or inflow, whichever is less; (3) upgrade water level monitoring equipment for the impoundment; and (4) install equipment to allow for automatic pond level control.
A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) Bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
o.
p. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
q. A license applicant must file no later than 60 days following the date of issuance of the notice of acceptance and ready for environmental analysis provided for in § 5.22: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
On May 10, 2010, Goodwin Power, LLC filed an application, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Goodwin Dam Project, located on the Stanislaus River in Tuolumne and Calaveras counties, California. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would be located at the existing Goodwin dam
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 land acquisition 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. e.t. 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.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. e.t. 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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. e.t. 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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Docket Number: CP10-467-000.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed on or before 5 p.m. Eastern time on the specified comment date. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
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. e.t. 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.
As it relates to any qualifying facility filings, the notices of self-certification [or self-recertification] listed above, do not institute a proceeding regarding qualifying facility status. A notice of self-certification [or self-recertification] simply provides notification that the entity making the filing has determined the facility named in the notice meets the applicable criteria to be a qualifying facility. Intervention and/or protest do not lie in dockets that are qualifying facility self-certifications or self-recertifications. Any person seeking to challenge such qualifying facility status may do so by filing a motion pursuant to 18 CFR 292.207(d)(iii). Intervention and protests may be filed in response to notices of qualifying facility dockets other than self-certifications and self-recertifications.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that on July 7, 2010, pursuant to section 5 of the Natural Gas Act, 15 U.S.C. 717d (2006) and Rule 206 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, 18 CFR 385.206 (2010), Texas Gas Service Company, a Division of ONEOK (TGS) (Complainants) filed a formal complaint against El Paso Natural Gas Company (EPNG) (Respondent) alleging that EPNG's Mainline postage stamp cost allocation methodology is unjust and unreasonable, and that it should be replaced with just and reasonable zone-based fuel rates.
TGS certifies that copies of the complaint were served on individuals listed on the Commission's official service list in EPNG's current rate case, Docket No. RP08-426, as well as contacts for EPNG as listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Mid-Atlantic Connector Expansion Project involving construction and operation of facilities by Transcontinental Gas Pipe Line Company, LLC (Transco) in Fairfax, Prince William, Pittsylvania, and Fluvanna Counties, Virginia. This EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help the Commission staff determine what issues need to be evaluated in the EA. Please note that the scoping period will close on August 16, 2010.
Comments may be submitted in written form or verbally. Further details on how to submit written comments are provided in the Public Participation section of this notice. In lieu of or in addition to sending written comments, we invite you to attend the public scoping meeting scheduled as follows: FERC Public Scoping Meeting, Mid-Atlantic Connector Expansion Project, August 4, 2010, 7 p.m., Virginia Run Community Center, 15355 Wetherburn Court, Centerville, VA 20120.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with State law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
Transco's planned Mid-Atlantic Connector Expansion Project would increase capacity by 142,000 dekatherms per day from Transco's Cascade Creek Interconnect in Rockingham County, North Carolina, to delivery points in Virginia and Maryland. The project would consist of the following facilities in Virginia:
• Construction of about 1.44 miles of new 42-inch-diameter pipeline loop
• Replacement of about 1.35 miles of Mainline B pipeline with the new Mainline D pipeline from MP 1584.83 to MP 1586.17 in Fairfax County;
• New and replacement compressor units at Transco's existing Compressor Stations 165 and 175 in Pittsylvania and Fluvanna Counties, respectively; and
• Relocation of a pig launcher
The general location of the project facilities is shown in appendix 1.
The new pipeline loop and pipeline replacement would primarily be installed within Transco's existing rights-of-way. Installation of the new Mainline D loop would be between Transco's Mainline B and C pipeline rights-of-way. Transco would replace the Mainline B pipeline with the new Mainline D pipeline between Transco's existing Mainline A and C pipelines. Transco would install the new Mainline D pipeline within the same trench of Mainline B. Following construction, permanent operation of the pipelines would remain within Transco's existing rights-of-way. The modifications at Compressor Stations 165 and 175 would take place entirely within the existing fenced stations.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife;
• Air quality and noise;
• Endangered and threatened species; and
• Public safety.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. As part of our pre-filing review, we have begun to contact some Federal and State agencies to discuss their involvement in
Our independent analysis of the issues will be presented in the EA. The EA will be placed in the public record and, depending on the comments received during the scoping process, may be published and distributed to the public. A comment period will be allotted if the EA is published for review. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section beginning on page 5.
FERC staff will be involved in discussions with other jurisdictional agencies to identify their issues and concerns. These agencies include, but are not limited to, the National Park Service; U.S. Fish and Wildlife Service; Virginia State Historic Preservation Office; and Virginia Department of Environmental Quality. With this notice, we are asking agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.
In accordance with the Advisory Council on Historic Preservation's implementing regulations, we are using this notice to solicit the views of the public on the project's potential effects on historic properties.
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities and the environmental information provided by Transco. This preliminary list of issues may be changed based on your comments and our analysis.
• Impacts on residential and commercial areas; and
• Impacts from the new loop pipeline on the Manassas National Battlefield Park in Manassas, Virginia.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that they will be received in Washington, DC on or before August 16, 2010.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (PF10-16-000) with your submission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located at
(2) You may file your comments electronically by using the “eFiling” feature that is listed under the
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
Once Transco files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until a formal application for the project is filed with the Commission.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA). The EA will discuss the environmental impacts of the Ryckman Creek Storage Project (Project) involving construction and operation of facilities by Ryckman Creek Resources, LLC (Ryckman Creek) in Uinta County, Wyoming. This EA will be used by the Commission in its decisionmaking process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process that will be used to gather input from the public and interested agencies on the Project. Your input will help the Commission staff and cooperating agencies determine which issues need to be evaluated in the EA. Please note that the scoping period for this Project will close on August 16, 2010. This is not your only public input opportunity; please refer to the Environmental Review Process flow chart in Appendix 1.
The FERC will be the lead Federal agency for the preparation of the EA. The EA will satisfy the requirements of the National Environmental Policy Act (NEPA) and will be used by the FERC to consider the environmental impacts that could result if it issues Ryckman Creek Certificate of Public Convenience and Necessity under section 7 of the Natural Gas Act.
The Bureau of Land Management (BLM) is participating as a cooperating agency in the preparation of the EA to satisfy its respective NEPA and planning responsibilities since the Project would cross Federal land under the jurisdiction of the Kemmerer Field Office in Wyoming. Under sections 17 and 28 of the Mineral Leasing Act of 1920 (30 U.S.C. 185(f) and 226(m)), the BLM has the authority to issue underground gas storage agreements and right-of-way grants for all affected Federal lands. This would be in accordance with title 43 Code of Federal Regulations (CFR) parts 2800, 2880, and 5105.5 subsequent 2800, 2880, and 3160-11 Manuals, and Handbook 2801-1. As a cooperating agency, the BLM would adopt the EA per Title 40 CFR 1506.3 to meet its responsibilities under NEPA in considering Ryckman Creek's application for a Right-of-Way Grant and Temporary Use Permit for the portion of the Project on Federal land, by the Kemmerer Field Office, High Desert District; and the issuance of an Underground Gas Storage Agreement by the Wyoming State Office, Reservoir Management Group, Casper, Wyoming.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives are asked to notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
Ryckman Creek plans to convert a partially depleted oil field, known as the Ryckman Nugget Unit (Unit), into a natural gas storage field offering approximately 25 to 30 billion cubic feet (Bcf) of high deliverability working gas capacity in Uinta County, Wyoming. Ryckman Creek would also construct and operate about 3.9 miles of 16- to 20-inch-diameter pipeline header system connecting the existing Canyon Creek Compressor Station with the Unit. The Project will provide for the injection and withdrawal of natural gas into and out of the Unit via interconnects with the existing Kern River, Questar, and Overthrust/REX pipelines directly adjacent to the Canyon Creek Compressor Station. Combined, these three interconnect pipelines provide a total of 1.55 Bcf per day of take-away capacity. Prior to and concurrent with the development of the storage field, Ryckman Creek proposes to initiate enhanced oil recovery (EOR) operations of the petroleum reserves remaining in the Unit.
The Ryckman Creek Storage Project would consist of the following facilities, all in Unita County, Wyoming:
• Drill and complete up to five new horizontal injection/withdrawal (I/W) wells and convert an EOR horizontal withdrawal well, to be drilled in the initial EOR phase in 2010, to an I/W well for storage operations.
• The Project would require an additional 6,000 to 9,000 horsepower (hp), for a total of 28,000 to 31,000 hp at the existing Canyon Creek Compressor Station. One or two new electric-driven compressors would be added and four of the existing compressor units would be retrofitted.
• Create a central gas/liquids separation facility (Ryckman Plant) where all of the gas pipelines meet. It would contain a small electric-driven compressor to compress casing head gas, liquids separation equipment, and water and gas handling equipment.
• Construct a 3.9-mile-long high pressure header pipeline between the Ryckman Plant at the storage field and the Canyon Creek Compressor Station.
• Construct 4 mile(s) of new 8-inch-diameter storage field I/W lines.
• Convert one previously re-entered well to an observation well.
• Construct ancillary facilities, as necessary to operate the Project (
• Construct temporary laydown and temporary support facilities. To the extent feasible, some of these would be located within the existing disturbed,
• Re-enter/re-complete up to 13 production wells (EOR development concurrent with storage operations).
• Re-enter/re-complete up to two saltwater disposal wells, one on the Unit and one off-Unit (the first of two saltwater disposal wells would be re-completed in 2010 as part of the initial EOR development).
• Re-use/construct production well gathering system (EOR development concurrent with storage operations).
• Construct a water/hydrocarbon liquids dew point control plant and a nitrogen reject unit (NRU) at the existing Canyon Creek Compressor Station.
• Certain facilities may need to be abandoned at the Canyon Creek Compressor Station.
Construction of the planned facilities would disturb about 177 acres of land for the pipelines and wells. Following construction, about 128 acres would be maintained for permanent operation of the project's facilities; the remaining acreage would be restored and allowed to revert to former uses. Additional land would be required for construction and operation of the aboveground facilities, for access roads, and additional temporary workspaces.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• Land use;
• Water resources, fisheries, and wetlands;
• Cultural resources;
• Vegetation and wildlife including migratory birds;
• Air quality and noise;
• Endangered and threatened species; and
• Public safety.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. As part of our pre-filing review, we have begun to contact some Federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA. See Appendix 1 for an overview of the Commission's Pre-Filing Environmental Review Process.
Our independent analysis of the issues will be presented in the EA. The EA will be placed in the public record and, depending on the comments received during the scoping process, may be published and distributed to the public. A comment period will be allotted if the EA is published for review. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure your comments are considered, please carefully follow the instructions in the Public Participation section beginning on page 6.
With this notice, we are asking agencies with jurisdiction and/or special expertise with respect to environmental issues to formally cooperate with us in the preparation of the EA. These agencies may choose to participate once they have evaluated the proposal relative to their responsibilities. Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice. Currently, the BLM has expressed their intention to participate as a cooperating agency in the preparation of the EA to satisfy their NEPA responsibilities related to this project.
In accordance with the Advisory Council on Historic Preservation's implementing regulations, we are using this notice to solicit the views of the public on the project's potential effects on historic properties.
You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are timely and properly recorded, please send your comments so that they will be received in Washington, DC on or before August 16, 2010.
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert eFiling staff available to assist you at (202) 502-8258 or
(1) You may file your comments electronically by using the Quick Comment feature, which is located at
(2) You may file your comments electronically by using the “eFiling” feature that is listed under the “Documents and Filings” link. eFiling involves preparing your submission in the same manner as you would if filing on paper, and then saving the file on your computer's hard drive. You will attach that file to your submission. New eFiling users must first create an account by clicking on the links called “Sign up” or “eRegister”. You will be asked to select the type of filing you are making. A comment on a particular
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1A Washington, DC 20426.
The environmental mailing list includes Federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If the EA is published for distribution, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 3).
Once Ryckman Creek files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's Web site. Please note that the Commission will not accept requests for intervenor status at this time. You must wait until a formal application for the project is filed with the Commission.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
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On August 24, 2009, Alaska Village Electric Cooperative (AVEC) filed a Pre-Application Document (PAD) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations. The PAD described the proposed project location, facilities, and operations and included information on the existing environment and any known and potential impacts of the proposed project on specified resources. The Commission issued Scoping Documents 1
g. On Thursday, October 22, 2009, Commission staff conducted a daytime scoping meeting for the proposed Old Harbor Hydroelectric Project at AVEC's office in Anchorage, Alaska. Due to inclement weather conditions, the environmental site review and evening scoping meeting that was scheduled for Wednesday, October 21, 2009 in Old Harbor, Alaska was cancelled. Therefore, Commission staff will conduct an environmental site review and scoping meeting on Tuesday, August 17, 2010 and are inviting all interested individuals, organizations, and agencies to attend one or both of these events, and to assist staff in identifying the scope of environmental issues to be addressed in the environmental document. The details of the environmental site review and evening scoping meeting are as follows:
AVEC and Commission staff will conduct an environmental site review of the project area on Tuesday, August 17, 2010, beginning at 1:00 p.m. at the Old Harbor Native Corporation office. Those wishing to participate should contact Robin Reich by August 6, 2010 [e-mail,
Scoping meeting participants should come prepared to discuss their issues and/or concerns with the proposed Old Harbor Hydroelectric Project. Please review the PAD, Scoping Documents 1 and 2, AVEC's proposed and revised study plans, and the Commission's study plan determination in preparation for the scoping meeting. These documents, as well as other documents pertaining to the record for this proceeding, may be viewed on the Web at
This is a supplemental notice in the above-referenced proceeding of Synergics Roth Rock North Wind Energy, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
This is a supplemental notice in the above-referenced proceeding of Ally Energy, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
This is a supplemental notice in the above-referenced proceeding of Starion Energy NY, Inc.'s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
This is a supplemental notice in the above-referenced proceeding of Synergics Roth Rock Wind Energy, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
This is a supplemental notice in the above-referenced proceeding of East Coast Power and Gas, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
This is a supplemental notice in the above-referenced proceeding of Hardscrabble Wind Power LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 29, 2010.
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-referenced proceeding 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
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Notice of Program Intent.
The Department of Energy (DOE) today gives notice that the Office of Biomass Program, in the Office of Energy Efficiency and Renewable Energy, intends to conduct a Reverse Auction pursuant to section 942 of the Energy Policy Act of 2005 (EPAct 2005). Through this notice, biofuels producers and other interested parties are invited to submit pre-auction eligibility information in accordance with the process described below.
Pre-auction eligibility information must be received by September 20, 2010.
E-mail pre-auction eligibility information to
Questions may be directed to: Mr. Neil Rossmeissl, Office of the Biomass Program, U.S. Department of Energy, Mailstop EE-2E, Room 5H021, 1000 Independence Avenue, SW., Washington, DC 20585; (202) 586-8668 or at
As stated in 10 CFR part 452, “Production Incentives for Cellulosic Biofuels; Reverse Auction Procedures and Standards,” (74 FR 52867, October 15, 2009) (“Final Rule”), Section 942 of the EPAct 2005, Public Law 109-58 (August 8, 2005), requires the Secretary of Energy (Secretary), in consultation with the Secretary of Agriculture, the Secretary of Defense, and the Administrator of the Environmental
All interested parties are invited to submit pre-auction eligibility statements. Pre-auction eligibility statements must be submitted to
A pre-auction eligibility statement will, at a minimum:
(i) Demonstrate that the filing party owns and operates or plans to own and operate an eligible cellulosic biofuels production facility;
(ii) Identify the site or proposed site for the filing party's eligible cellulosic biofuels production facility;
(iii) Demonstrate that the cellulosic biofuel to be produced for purposes of receiving an award either currently is suitable for widespread general use as a transportation fuel or will be suitable for such use in a timeframe and in sufficient volumes to significantly contribute to the goal of 1 billion gallons of refined cellulosic biofuel by August 2015.
(iv) Provide audited or
(v) Identify one or more proposed sources of financing for the construction or expansion of the filing party's eligible cellulosic biofuels production facility.
DOE will provide the format for the pre-auction eligibility statement. It may be obtained by request from
As defined in the Final Rule, eligible cellulosic biofuels production facility means a facility—
• Located in the United States (including U.S. territories and possessions);
• Which meets all applicable Federal and State permitting requirements; and
• Employs a demonstrated refining technology.
An eligible cellulosic biofuels production facility must also be operational and producing the eligible cellulosic biofuel no later than three years after the bid is submitted to the reverse auction. Facilities must have the capacity to produce a minimum of 10 million gallons per year of cellulosic biofuel. Incentives are specific to a facility. If the facility should change ownership during the course of the award period, the incentive will be paid to the new owner of the facility, if the successor entity meets all eligibility requirements.
For the cellulosic biofuel to be eligible under this program, bidders must also demonstrate that they will produce a cellulosic biofuel which either currently is suitable for widespread general use as a transportation fuel or, alternatively, that the cellulosic biofuel will be suitable for such use in a timeframe and in sufficient volumes to significantly contribute to the goal of 1 billion gallons of refined cellulosic biofuel by the statutory deadline. This description may include, but is not limited to the following:
• Obtaining vehicle manufacturer(s) approval;
• Obtaining EPA fuel registration(s);
• Establishing standards for use, production, storage, transportation, and retail dispensing; and
• Establishing a distribution/dispensing infrastructure.
Additionally, the pre-auction eligibility statements must estimate the costs and discuss the activities required for eventually commercializing the proposed cellulosic biofuel.
The pre-auction eligibility statements must also calculate the lower heating BTU value (LHV) of the proposed cellulosic value as compared to gasoline on a volumetric equivalent basis. A table with the most common fuels heating values can be found at:
An eligible biofuels producer must either own and operate or plan to own and operate an eligible cellulosic biofuels facility. The awards are site specific; an eligible biofuels producer cannot transfer the incentive to another facility. The producer will be responsible for satisfying all terms and conditions of the incentive award, including but not limited to, reporting requirements to DOE.
Bids will only be accepted from bidders who were notified of their eligibility by DOE after submitting acceptable pre-auction eligibility statements. In addition to being notified of their acceptance into the bidding pool, bidders will be notified of the process by which bids will be accepted via a funding opportunity announcement (FOA) to be published at
The specific bidding window will be identified in the published FOA. It is anticipated that the bidding window will occur during September 2010. The reverse auction will be conducted via a closed bid process and only the final bid received from a bidder will be considered.
Successful bidders will be required to adhere to all criteria described in the Final Rule as well as the Terms and Conditions that will be contained within the Assistance Agreement award executed by DOE. These requirements include, but are not limited to, the following:
• Progress Reports,
• Production Agreements,
• Confirmation of Continuing Eligibility, and
• Contractual Condition on Eligibility.
Post-Auction Requirements are identified in the Final Rule and will be available in the published FOA.
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and/or Commission staff may attend the following meeting:
Further information may be found at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is requesting applications for essential use allowances for calendar years 2012 and 2013. Essential use allowances provide exemptions from the phaseout of production and import of ozone-depleting substances. Essential use allowances must be authorized by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. The U.S. Government will use the applications received in response to this notice as the basis for its nomination of essential uses at the 23rd Meeting of the Parties to the Protocol, to be held in 2011.
Applications for essential use allowances must be submitted to EPA no later than August 23, 2010 in order for the U.S. Government to complete its review and to submit nominations to the United Nations Environment Programme and the Protocol Parties in a timely manner.
Send application materials to: Jeremy Arling, Stratospheric Protection Division (6205J), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. For applications sent via courier service, use the following direct mailing address: 1310 L Street, NW., Washington, DC 20005, room 1047E.
Confidentiality: Application materials that are confidential should be submitted under separate cover and be clearly identified as “trade secret,” “proprietary,” or “company confidential.” Information covered by a claim of business confidentiality will be treated in accordance with the procedures for handling information claimed as confidential under 40 CFR part 2, subpart B, and will be disclosed only to the extent and by means of the procedures set forth in that subpart. Please note that data will be presented in aggregate form by the United States as part of the nomination to the Parties. If no claim of confidentiality accompanies the information when it is received by EPA, the information may be made available to the public by EPA without further notice to the company (40 CFR 2.203).
Jeremy Arling at the above address, or by telephone at (202) 343-9055, by fax at (202) 343-2338, or by e-mail at
The Parties to the Protocol agreed during the Fourth Meeting in Copenhagen on November 23-25, 1992, that non-Article 5 Parties (developed countries) would phase out the production and consumption of halons by January 1, 1994, and the production and consumption of other class I substances (under 40 CFR part 82, subpart A), except methyl bromide, by January 1, 1996. The Parties also reached decisions and adopted resolutions on a variety of other matters, including the criteria to be used for allowing “essential use” exemptions from the phaseout of production and import of controlled substances. Decision IV/25 of the Fourth Meeting of the Parties details the specific criteria and review process for granting essential use exemptions.
Decision IV/25, paragraph 1(a), states that “* * * a use of a controlled substance should qualify as `essential' only if: (i) It is necessary for the health, safety or is critical for the functioning of society (encompassing cultural and intellectual aspects); and (ii) there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health.” In addition, the Parties agreed “that production and consumption, if any, of a controlled substance, for essential uses should be permitted only if: (i) All economically feasible steps have been taken to minimize the essential use and any associated emission of the controlled substance; and (ii) the controlled substance is not available in sufficient quantity and quality from the existing stocks of banked or recycled controlled substances * * *” Decision XII/2 of the Twelfth Meeting of the Parties states that any CFC metered dose inhaler (MDI) product approved after December 31, 2000, is nonessential unless the product meets the criteria in Decision IV/25, paragraph 1(a).
The first step in obtaining essential use allowances is for the user to consider whether the use of the controlled substance meets the criteria of Decision IV/25. If the essential use request is for an MDI product, the user should also consider whether the product meets the criteria of Decision XII/2. In addition, the user should consult recent and ongoing rulemakings by the Food and Drug Administration (FDA) concerning the essential use determination of various MDI moieties. In particular, users should consider FDA's November 19, 2008, final rulemaking that removes the essential use designation for epinephrine used in MDIs as of December 31, 2011 (73 FR 69532). Users should also consider FDA's April 14, 2010, rulemaking that removes the essential use designations for flunisolide, triamcinolone, metaproterenol, pirbuterol, albuterol and ipratropium in combination, cromolyn, and nedocromil used in MDIs at various dates depending upon the inhaler (75 FR 19213).
Users requesting essential use allowances for calendar years 2012 and 2013 should send a completed application to EPA on the candidate use. The application should include information that U.S. Government agencies and the Parties to the Protocol can use to evaluate the candidate use according to the criteria in the Decisions described above.
Upon receipt of applications, EPA reviews the information and works with other interested Federal agencies to determine whether the candidate use meets the essential use criteria and warrants nomination by the United States for an exemption. In the case of multiple exemption requests for a single use, such as for MDIs, EPA aggregates exemption requests received from individual entities into a single U.S. request. An important part of the EPA review is to ensure that the aggregate request for a particular future year adequately reflects the total market need for CFC MDIs and expected availability of CFC substitutes by that point in time. If the sum of individual requests does not account for such factors, the U.S. Government may adjust the aggregate request to better reflect true market needs.
Nominations submitted by the United States and other Parties are forwarded by the United Nations Ozone Secretariat to the Montreal Protocol's Technical and Economic Assessment Panel (TEAP) and its Medical Technical Options Committee (MTOC), which reviews the submissions and makes recommendations to the Parties for essential use exemptions. Those recommendations are then considered by the Parties at their annual meeting for final decision. If the Parties declare a specified use of a controlled substance as essential, and authorize an exemption from the Protocol's production and consumption phaseout, EPA may propose regulatory changes to reflect the decisions by the Parties, but only to the extent such action is consistent with the Clean Air Act. Applicants should be aware that essential use exemptions granted to the United States under the Protocol in recent years have been limited to CFCs for MDIs to treat asthma and chronic obstructive pulmonary disease. Applicants should also be aware that the Parties last authorized an essential use exemption for United States in 2008 for the 2010 calendar year.
The Parties review nominations for essential use exemptions for the following year and subsequent years. This means that, if nominated, applications submitted in response to today's notice for an exemption in 2012 and 2013 will be considered by the Parties in 2011 for final action. The quantities of controlled substances that are requested in response to this notice, if approved by the Parties to the Montreal Protocol, will then be allocated as essential use allowances to the specific U.S. companies through notice-and-comment rulemaking, to the extent that such allocations are consistent with the Clean Air Act.
Through this action, EPA requests applications for essential use exemptions for all class I substances, except methyl bromide, for calendar years 2012 and 2013. This notice is the last opportunity to submit new or revised applications for 2012. This notice is also the first opportunity to submit requests for 2013. Companies will have an opportunity in 2011 to submit new, supplemental, or amended applications for 2013. All requests for exemptions submitted to EPA should present information as requested in the current version of the TEAP
In brief, the TEAP Handbook states that applicants should present information on:
• Role of use in society;
• Alternatives to use;
• Steps to minimize use;
• Recycling and stockpiling;
• Quantity of controlled substances requested; and
• Approval date and indications (for MDIs).
In addition, entities should address the following points to ensure that their applications are clear and complete. First, entities that request CFCs for multiple companies should clearly state the amount of CFCs requested for each company. Second, all essential use applications for CFCs should provide a breakdown of the quantity of CFCs necessary for each MDI product to be produced. This detailed breakdown will allow EPA and FDA to make informed decisions regarding the amount of CFCs to be nominated by the U.S. Government for the years 2012 and 2013. Third, all new drug application (NDA) holders for CFC MDI products produced in the United States should submit a complete application for essential use allowances either on their own or in conjunction with their contract filler. In the case where a contract filler produces a portion of an NDA holder's CFC MDIs, the contract filler and the NDA holder should determine the total amount of CFCs necessary to produce the NDA holder's entire product line of CFC MDIs. The NDA holder should provide an estimate of how the CFCs would be split between the contract filler and the NDA holder in the allocation year. This estimate will be used only as a basis for determining the nomination amount, and may be adjusted prior to allocation of essential use allowances. Since the U.S. Government does not forward incomplete or inadequate nominations to the Ozone Secretariat, it is important for applicants to provide all information requested in the Handbook, including comprehensive information pertaining to the research and development of alternative CFC MDI products per Decision VIII/10, para. 1 as specified in the Supplement to Nomination Request (pg. 46).
Finally, consistent with Decision XIX/13 taken in September 2007 at the 19th Meeting of the Parties, when requesting essential use CFCs for MDIs, applicants should provide the following information: (1) The company's commitment to the reformulation of the concerned products; (2) the timetable in which each reformulation process may be completed; and (3) evidence that the company is diligently seeking approval of any CFC-free alternative(s) in its domestic and export markets and transitioning those markets away from its CFC products.
The accounting framework matrix in the Handbook (Table IV) titled “Reporting Accounting Framework for Essential Uses Other Than Laboratory and Analytical Applications” requests data for the year 2010 on the amount of ODS exempted for an essential use, the amount acquired by production, the amount acquired by import and the country(s) of manufacture, the amount on hand at the start of the year, the amount available for use in 2010, the amount used for the essential use, the quantity contained in exported products, the amount destroyed, and the amount on hand at the end of 2010. Because all data necessary for applicants to complete Table IV will not be available until after the control period ends on December 31, 2010, companies should not include this chart with their essential use applications in response to this notice. Instead, companies should report their data as required by 40 CFR 82.13(u)(2) in Section 5 of the report titled “Essential Use Allowance Holders and Laboratory Supplier Quarterly Report and Essential Use Allowance Holder Annual Report.”
EPA anticipates that the Parties' review of MDI essential use requests will focus extensively on the United States' progress in phasing out CFC MDIs, including education programs to inform patients and health care providers of the CFC phaseout and the transition to alternatives. Accordingly, applicants are strongly advised to present detailed information on these educational programs, including the scope and cost of such efforts and the medical and patient organizations involved in the work. In addition, EPA expects that Parties will be interested in research and development activities being undertaken by MDI manufacturers to develop and transition to alternative CFC-free MDI products. To this end, applicants are encouraged to provide detailed information on these efforts. Applicants should submit their exemption requests to EPA as noted in the “Addresses” section above.
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this notice under the provisions of the
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 August 16, 2010.
Board of Governors of the Federal Reserve System, July 19, 2010.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order — embodied in the consent agreement — that would settle these allegations.
Comments must be received on or before August 16, 2010.
Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Fidelity National Financial, File No. 091 0032” to facilitate the organization of comments. Please note that your comment — including your name and your state — will be placed on the public record of this proceeding, including on the publicly accessible FTC website, at (
Because comments will be made public, they should not include any sensitive personal information, such as an individual’s Social Security Number; date of birth; driver’s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential. . . .,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).
Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (
A comment filed in paper form should include the “Fidelity National Financial, File No. 091 0032” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.
The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (
Joseph Lipinsky (206-220-4473), FTC Northwest Regional Office, FTC, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for July 16, 2010), on the World Wide Web, at (
Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the
The Federal Trade Commission (“Commission” or “FTC”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) from Fidelity National Financial, Inc. (“Fidelity”). Fidelity purchased three title insurance subsidiaries from LandAmerica Financial, Inc. (“LandAmerica”). The subsidiaries were Commonwealth Land Title Insurance Company (“Commonwealth”), Lawyers Title Insurance Company (“Lawyers”), and United Capital Title Insurance Company (“United”). Fidelity’s acquisition of Commonwealth and Lawyers created likely anticompetitive effects that the proposed Consent Agreement resolves. Under the terms of the proposed Consent Agreement, Fidelity is required, among other things, to divest one share of its ownership interest in a joint title plant serving the Portland, Oregon, metropolitan area, and divest a copy of its title data serving Benton, Jackson, Linn, and Marion Counties, in Oregon. Additionally, Fidelity will sell a copy of title data that LandAmerica had provided to a third party, Data Trace, to a pre-approved purchaser to remedy the competitive concern in three counties in the Detroit, Michigan, metropolitan area.
The proposed Consent Agreement has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the proposed Consent Agreement, and will decide whether it should withdraw from the proposed Consent Agreement, modify it, or make it final.
On November 25, 2008, Fidelity and LandAmerica entered into an acquisition agreement under which Fidelity acquired LandAmerica’s title insurance subsidiaries for an amount valued, at the time of entering into the acquisition agreement, at approximately $258 million (“Acquisition”). The Commission’s Complaint alleges that Fidelity’s acquisition violates Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45, by eliminating an actual, direct, and substantial competitor from certain local markets in the United States.
Fidelity, a publicly traded company, is based in Jacksonville, Florida. Its title insurance services facilitate the purchase, sale, transfer, and finance of residential and commercial real estate. Fidelity provides title insurance to residential and commercial property buyers and sellers, real estate agents and brokers, developers, attorneys, mortgage brokers and lenders, and title insurance agents through its subsidiaries, Fidelity National Title Company, Title Insurance Company, Ticor Title Insurance Company, Commonwealth, and Lawyers.
LandAmerica was a publicly traded company based in Glen Allen, Virginia, that operated through wholly owned subsidiaries. LandAmerica generated the majority of its income from its title insurance subsidiaries, Commonwealth and Lawyers.
On Tuesday, December 16, 2008, the United States Bankruptcy Court for the Eastern District of Virginia held a hearing on LandAmerica’s motion to sell its subsidiaries to Fidelity. The bankruptcy court took testimony from LandAmerica, Fidelity, the unsecured creditors committee, the secured creditors committee, and the FTC. The court found that Fidelity’s purchase of the LandAmerica title insurance subsidiaries was in the best interest of the estate, and approved the sale of the subsidiaries to Fidelity.
Title insurance companies insure clients against the risk that clear title is not transferred during the sale of property. Risks include failure to detect defective deeds or to discover liens, adverse court judgments, or encumbrances created by other security interests. In order to conduct title searches in a timely fashion, title insurers need access to the most accurate, up-to-date, and conveniently
The Commission’s Complaint alleges that Fidelity’s acquisition of LandAmerica’s title insurance subsidiaries may substantially lessen competition in the provision of title information services in several counties in Oregon, and three counties making up the Detroit, Michigan, metropolitan area, in violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. § 45.
The Complaint alleges that the relevant product market in which to analyze the effects of the acquisition is the provision of title information services. “Title information services” means access to selected information contained in a title plant that is used to determine ownership of, and interests in, real property in connection with the underwriting and issuance of title insurance policies.
The Complaint also alleges that the relevant geographic markets are local in nature. Title information is generated and collected on a county level and, because of the highly local character of the real estate markets in which the title information services are used, geographic markets for title information services are highly localized and consist of the county or other local jurisdiction embraced by the real property information contained in the title plant. The three geographic areas of concern outlined in the Complaint are: (1) the tri-county Portland, Oregon, metropolitan area consisting of Clackamas, Multnomah, and Washington Counties; (2) Benton, Jackson, Linn, and Marion Counties, in Oregon; and (3) the tri-county Detroit, Michigan, metropolitan area consisting of Oakland, Macomb, and Wayne Counties.
In the Portland, Oregon, metropolitan area, the acquisition of LandAmerica’s subsidiaries vested Fidelity with a controlling interest in the sole title plant providing title insurance information services. Absent the proposed relief regarding the title plant serving the Portland metropolitan area, Fidelity’s acquisition of LandAmerica’s subsidiaries increases the risk that Fidelity would unilaterally restrict or withhold access to title information, thus eliminating the potential for a new title insurance company to enter.
In Benton, Jackson, Linn, and Marion Counties in Oregon, the acquisition of LandAmerica’s subsidiaries reduced the number of independent title plants providing title information services in these counties from four to three. Absent the proposed relief in these counties, Fidelity’s acquisition would increase the risk of collusion among the remaining market participants to restrict or withhold access to title information, thus eliminating the potential for a new title insurance company to enter.
In three counties in the Detroit, Michigan, metropolitan area, Fidelity’s purchase of LandAmerica’s subsidiaries may give Fidelity the power to affect the competitive significance of Data Trace, an independent title information services provider. Data Trace, in which LandAmerica once had an ownership interest, is a provider of title plant information services in the Detroit metropolitan area.
Based on the facts above, the Complaint alleges that Fidelity’s acquisition of LandAmerica’s subsidiaries could eliminate actual, direct, and substantial competition between Fidelity and LandAmerica’s subsidiaries in the relevant markets; increase Fidelity’s ability to unilaterally exercise market power in the Detroit and Portland metropolitan areas; and substantially increase the level of concentration and enhance the probability of coordination in Benton, Jackson, Linn, and Marion Counties, in Oregon.
As stated in the Complaint, entry would not be timely, likely, or sufficient to deter or counteract the anticompetitive effects of this acquisition. There are relatively long time frames and large capital expenses associated with building and maintaining title plants. Among other things, intensive time and labor are required in each local jurisdiction to develop effective data collection technology and to compile historical data.
The proposed Consent Agreement will remedy the Commission’s competitive concerns resulting from Fidelity’s acquisition in each of the relevant markets discussed above. Pursuant to the proposed Consent Agreement, Fidelity will divest one share of its ownership interest in a joint title plant that serves the Portland, Oregon, metropolitan area to Northwest Title. This will remedy the competitive harm in that local market by ensuring that Fidelity no longer owns a majority of the only joint title plant serving that market. The proposed Consent Agreement also requires Fidelity to divest a copy of each of the title plants serving Benton, Jackson, Linn, and Marion Counties, in Oregon to Northwest Title. The sale of the title plants in Benton, Jackson, Linn, and Marion counties will eliminate the competitive harm that otherwise would have resulted in those markets by restoring the number of independent title plant owners within each county to the pre-acquisition level.
Northwest Title is a privately-held company that is part of a family of six companies involved in real estate. Although the company will be a new entrant in the relevant markets, it does have experience in the title insurance business, and has pre-existing relationships with entities and individuals in the real estate market, mortgage banking industry, and related businesses. Moreover, Northwest Title is financially viable and is positioned to quickly achieve the remedial purposes of the proposed Consent Agreement.
Additionally, pursuant to the proposed Consent Agreement, Fidelity will sell a copy of the title data that LandAmerica’s subsidiaries had provided to Data Trace to a pre-approved purchaser, for the three counties making up the Detroit, Michigan, metropolitan area.
Finally, the proposed Consent Agreement requires Fidelity to provide the Commission with prior written notice before acquiring fifty (50) percent or more of any joint title plant in the following states: California, Colorado, Nevada, New Mexico, Oregon, and Texas. In all of these states, Fidelity’s acquisition of LandAmerica’s subsidiaries increased Fidelity’s ownership interest in joint title plants. Without this prior notification provision, in the future Fidelity could gain a controlling interest in joint plants serving these states without the FTC’s knowledge.
The Consent Agreement has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will review the Consent Agreement again and the comments received and will decide whether it should withdraw from the Consent Agreement, modify it, or make it final. By accepting the Consent Agreement subject to final approval, the
By direction of the Commission.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before August 16, 2010.
Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Nestle, File No. 092 3087” to facilitate the organization of comments. Please note that your comment—including your name and your state—will be placed on the public record of this proceeding, including on the publicly accessible FTC website, at (
Because comments will be made public, they should not include any sensitive personal information, such as an individual's Social Security Number; date of birth; driver';s license number or other state identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential. . . .,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).
Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (
A comment filed in paper form should include the “Nestle, File No. 092 3087” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.
The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (
Karen Mandel (202-326-2491), Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580.
Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for July 14, 2010), on the World Wide Web, at (
Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the
The Federal Trade Commission (“FTC” or “Commission”) has accepted, subject to final approval, an agreement containing a consent order from Nestle; HealthCare Nutrition, Inc. (“respondent”). The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record.
This matter involves the advertising and promotion of BOOST Kid Essentials, a children's nutritional drink that also delivers probiotics via an attached straw. According to the FTC complaint, respondent represented, in various advertisements, that BOOST Kid Essentials prevents upper respiratory tract infections in children; strengthens the immune system, thereby providing protection against cold and flu viruses; and reduces absences from daycare or school due to illness. The complaint alleges that these claims are unsubstantiated and thus violate the FTC Act.
The FTC complaint further charges that respondent represented that clinical studies prove that BOOST Kid Essentials reduces the general incidence of illness in children, including upper respiratory tract infections; reduces the duration of acute diarrhea in children up to age thirteen (the age group for which the product is marketed); and strengthens the immune system, thereby providing protection against cold and flu viruses. The complaint alleges that these claims are false and thus violate the FTC Act.
The proposed consent order contains provisions designed to prevent respondent from engaging in similar acts or practices in the future. The order covers representations made in connection with the manufacturing, labeling, advertising, promotion, offering for sale, sale, or distribution of any covered product, in or affecting commerce. The order defines a covered product as BOOST Kid Essentials, any drink product containing probiotics, or any nutritionally complete drink, other than infant formula, medical foods, and any product not sold primarily through conventional retail channels.
Part I of the consent order is designed to address the complaint allegations concerning respondent's allegedly unsubstantiated representations that its products prevent upper respiratory tract infections (URTIs). Part I prohibits respondent from making representations that a covered product prevents or reduces the risk of URTIs, including, but not limited to, cold or flu viruses, unless the representation is specifically permitted in labeling for such product by regulations promulgated by the Food and Drug Administration (FDA) pursuant to the Nutrition Labeling and Education Act of 1990 (NLEA). Under this provision, therefore, respondent cannot make a claim of URTI risk reduction unless the FDA has issued a regulation authorizing the claim based on a finding that there is significant scientific agreement among experts qualified by scientific training and experience to evaluate such claims, considering the totality of publicly available scientific evidence. As noted in the Commission's Enforcement Policy Statement on Food Advertising, “[t]he Commission regards the ‘significant scientific agreement' standard, as set forth in the NLEA and FDA's regulations, to be the principal guide to what experts in the field of diet-disease relationships would consider reasonable substantiation for an unqualified health claim.” Enforcement Policy Statement on Food Advertising (1994),
Respondent may decide to make an advertising claim characterizing limited scientific evidence supporting the relationship between a covered product and URTIs. However, if the net impression is that a covered product prevents or reduces the risk of URTIs, and not merely that there is limited scientific evidence supporting the claim, the advertisement would be covered under Part I. The Commission notes that its experience and research show that it is very difficult to adequately qualify a disease risk-reduction claim in advertising to indicate that the science supporting the claimed effect is limited. In other words, reasonable consumers may interpret an advertisement to mean that the product will prevent or reduce the risk of URTIs, even if respondent includes language indicating that the science supporting the effect is limited in some way. However, if respondent possesses reliable empirical testing demonstrating that the net impression of an advertisement making a qualified claim for a covered product does not convey that it will prevent or reduce the risk of URTIs, then that claim would be covered under the relevant subsequent parts of the order.
Although Part I requires FDA approval before respondent can make claims that a covered product prevents or reduces the risk of URTIs, the Commission does not intend Part I to limit respondent to using the precise language specified in an FDA-approved health claim. To the contrary, if the FDA has approved a claim that a covered product can prevent or reduce the risk of URTIs, respondent may use a variety of words and images to communicate that claim in its advertising. Likewise, regardless of the particular words or images used, if the net impression of an advertisement is that a covered product prevents or reduces the risk of URTIs, then for the ad to comply with the order, the FDA must have authorized a health claim based on significant scientific agreement that such product provides such a benefit.
Part II of the consent order prohibits respondent from making representations that a covered product reduces the duration of acute diarrhea in children up to the age of thirteen, or reduces absences from daycare or school due to illness, unless the representation is non-misleading and, at the time of making such representation, respondent possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true. For purposes of Part II, competent and reliable scientific evidence means at least two adequate and well-controlled human clinical studies of the product, or of an essentially equivalent product, conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true. For purposes of the order, essentially equivalent product means a product that contains the identical ingredients, except for inactive ingredients (
Part III of the consent order prohibits respondent from making representations, other than representations covered under Parts I or II, about the health benefits, performance, or efficacy of any covered product, unless the representation is
Part IV of the consent order prohibits respondent from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research.
Part V of the consent order provides that nothing in the order shall prohibit respondent from making any representation for any product that is specifically permitted in labeling for such product by regulations promulgated by the FDA pursuant to the NLEA.
Parts VI, VII, VIII, and IX of the consent order require respondent to keep copies of relevant advertisements and materials substantiating claims made in the advertisements; to provide copies of the order to its personnel; to notify the Commission of changes in corporate structure that might affect compliance obligations under the order; and to file compliance reports with the Commission.
Part X provides that the order will terminate after twenty (20) years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify their terms in any way.
By direction of the Commission.
Office of Minority Health, Office of Public Health and Science, Office of the Secretary, Department of Health and Human Services.
Notice.
42 U.S.C. 300u-6, Section 1707 of the Public Health Service Act, as amended. The Advisory Committee is governed by provisions of Public Law 92-463, as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees.
The Department of Health and Human Service (HHS), Office of Public Health and Science (OPHS), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Minority Health (ACMH). In accordance with Public Law 105-392, the Committee provides advice to the Deputy Assistant Secretary for Minority Health, on the development of goals and specific program activities of the Office of Minority Health (OMH) designed to improve the health of racial and ethnic minority groups. Nominations of qualified candidates are being sought to fill current and impending vacant positions on the Committee.
Nominations for membership on the Committee must be received no later than 5 p.m. EST on October 20, 2010, at the address listed below.
All nominations should be mailed or delivered to Dr. Garth Graham, Deputy Assistant Secretary for Minority Health, Office of Minority Health, Office of Public Health and Science, Department of Health and Human Services, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852.
Ms. Monica Baltimore, Executive Director, Advisory Committee on Minority Health, Office of Minority Health, Office of Public Health and Science, Department of Health and Human Services, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852; Telephone: (240) 453-2882.
A copy of the Committee charter and list of the current membership can be obtained by contacting Ms. Baltimore or by accessing the Web site managed by OMH at
Pursuant to Public Law 105-392, the Secretary of Health and Human Services established the ACMH. The Committee shall provide advice to the Deputy Assistant Secretary for Minority Health in carrying out the duties stipulated under Public Law 105-392. This includes providing advice to improve the health of each racial and ethnic minority group and in the development of goals and specific activities of the OMH, which are:
(1) Establish short-range and long-range goals and objectives and coordinate all other activities within the Public Health Service that relate to disease prevention, health promotion, service delivery, and research concerning such individuals;
(2) Enter into interagency agreements with other agencies of the Public Health Service;
(3) Support research, demonstrations, and evaluations to test new and innovative models;
(4) Increase knowledge and understanding of health risk factors;
(5) Develop mechanisms that support better information dissemination, education, prevention, and service delivery to individuals from disadvantaged backgrounds, including individuals who are members of racial or ethnic minority groups;
(6) Ensure that the National Center for Health Statistics, within the Centers for Disease Control and Prevention, collects data on the health status of each minority group;
(7) With respect to individuals who lack proficiency in speaking the English language, enter into contracts with public and nonprofit private providers of primary health services for the purpose of increasing the access of these individuals to such services by developing and carrying out programs to provide bilingual or interpretive services;
(8) Support a national minority health resource center to carry out the following:
(a) Facilitate the exchange of information regarding matters relating to health information and health promotion, preventive health services, and education in appropriate use of health care;
(b) Facilitate access to such information;
(c) Assist in the analysis of issues and problems relating to such matters;
(d) Provide technical assistance with respect to the exchange of such information (including facilitating the development of materials for such technical assistance);
(9) Carry out programs to improve access to health care services for individuals with limited proficiency in speaking the English language. Activities under the preceding sentence shall include developing and evaluating model projects; and
(10) Advising in matters related to the development, implementation, and evaluation of health professions education in decreasing disparities in health care outcomes, including cultural competency as a method of eliminating health disparities.
Management and support services for the ACMH are provided by the OMH, which is a program office within the OPHS.
(1) Expertise in minority health and racial and ethnic health disparities.
(2) Expertise in developing or contributing to the development of health policies and/or programs. This may include experience in the analysis, evaluation, and interpretation of Federal health or regulatory policy.
(3) Involvement in national, regional, Tribal, and/or community efforts to improve minority health.
(4) Educational achievement, professional certification(s) in health-related field (behavioral health, public health, nursing, environmental health, nutrition, pharmacy, epidemiology, health administration,
(1) Knowledge of national health policies and programs managed by the HHS.
(2) Job-related training, self-development, and outside professional activities which provides evidence of initiative, resourcefulness, and potential for effective performance.
Individuals selected for appointment to the Committee shall be invited to serve four year terms. Committee members who are not officers or employees of the United States Government will receive a stipend for attending Committee meetings and conducting other business in the interest of the Committee, including per diem and reimbursement for travel expenses incurred.
The Department makes every effort to ensure that the membership of HHS Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that a broad representation of geographic areas, females, ethnic and minority groups, and the disabled are given consideration for membership on HHS Federal advisory committees. Appointment to this Committee shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status. Nominations must state that the nominee is willing to serve as a member of ACMH and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected candidate. Therefore, individuals selected for nomination will be required to provide detailed information concerning such matters as financial holdings, consultancies, and research grants or contracts to permit evaluation of possible sources of conflict of interest.
Health Resources and Services Administration (HRSA), HHS.
Notice of establishment.
Pursuant to Section 5602 of the ACA, HRSA plans to establish a comprehensive methodology and criteria for Designation of MUPs and Primary Care HPSAs [under Sections 330(b)(3) and 332 of the Public Health Service (PHS) Act, respectively], using a Negotiated Rulemaking process. To do this, HRSA announces the establishment of the Negotiated Rulemaking Committee on the Designation of Medically Underserved Populations and Health Professions Shortage Areas.
Andy Jordan, Senior Analyst, Office of Shortage Designation, Bureau of Health Professions; e-mail
Section 5602 of the Patient Protection and Affordable Care Act of 2010 mandates the Negotiated Rulemaking Committee within the Department of Health and Human Services. To comply with the authorizing directive and guidelines
The purpose of the Negotiated Rulemaking Committee on Designation of MUPs and HPSAs is to provide advice and make recommendations to the Secretary of Health and Human Services, through the Administrator, Health Resources and Services Administration, with respect to developing a new rule containing a revised methodology, criteria and process for such designations.
The Committee shall be limited to 25 members, unless it is determined that a greater number of members is necessary for the functioning of the Committee or to achieve balanced membership, including the one Government employee representing HRSA/DHHS. A neutral facilitator, approved by the Committee, shall act as Chair. Members shall be chosen for their ability to represent the various interests that will be significantly affected by the rule, and/or for technical expertise related to indicators and methodologies potentially useful in defining medical underservice and health professions shortage. Members shall be invited to serve for the duration of the Committee.
HRSA will provide funding and administrative support for the Negotiated Rulemaking Committee to the extent permitted by law within existing appropriations. Management and oversight for support services provided to the Negotiated Rulemaking Committee will be provided by the Bureau of Health Professions, HRSA.
A copy of the Committee charter can be obtained from the designated contacts or by accessing the FACA database that is maintained by the GSA Committee Management Secretariat. The Web site for the FACA database is
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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 meeting of the National Cancer Advisory Board.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
A portion of 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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 ofpersonal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to timing limitations imposed by the review funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
On February 13, 1991, the Assistant Secretary for Health, of the Department of Health and Human Services, delegated to the Administrator, Health Resources and Services Administration (HRSA), with authority to redelegate, all of the authority under Title III, Part D of the Public Health Service Act (42 U.S.C. 254
Notice is hereby given that I have delegated to the Associate Administrator, and the Deputy Associate Administrator, Office of Rural Health Policy, HRSA, the authority vested in the Administrator under Title III, Part D, Section 330L of the Public Health Service Act (42 U.S.C. 245c-18), as amended, pertaining to the functions assigned to the Office for the Advancement of Telehealth, Office of Rural Health Policy.
This authority may be redelegated.
This delegation excludes the authority to make awards and shall be exercised in accordance with the Department's and HRSA's applicable policies, procedures, and guidelines.
I hereby affirm and ratify any actions taken by the Associate Administrator and Deputy Associate Administrator, Office of Rural Health Policy, or other HRSA officials, which involved the exercise of these authorities prior to the effective date of this delegation.
This delegation is effective upon date of signature.
This notice amends Part K of the Statement of Mission, Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (HHS), Administration for Children and Families (ACF), as follows: The Paperwork Reduction Act function is transferred from Chapter KP, the Office of the Deputy Assistant Secretary for Administration (ODASA), as last amended in 71 FR 59117-59123, October 6, 2006, to Chapter KM, the Office of Planning, Research and Evaluation (OPRE), as last amended in 67 FR 67198, November 4, 2002. This notice announces the transfer of the Paperwork Reduction Act functions from the Office of the Deputy Assistant Secretary for Administration to OPRE. The changes are as follows:
I.
The Deputy Assistant Secretary for Administration represents the Assistant Secretary for Children and Families in HHS and with other Federal agencies and task forces in defining objectives and priorities, and in coordinating activities associated with Presidential Management Agenda initiatives. ODASA provides leadership of assigned ACF special initiatives from Departmental, Federal and non-Federal directives to improve service delivery to customers.
The Deputy Assistant Secretary for Administration provides day-to-day executive leadership and direction to the Immediate Office of the Deputy Assistant Secretary; Equal Employment Opportunity and Civil Rights Staff; Office of Information Services; Office of Financial Services; Office of Management Resources; and the Office of Grants Management. The Deputy Director for Administration assists the Deputy Assistant Secretary in carrying out the responsibilities of the Office.
The Immediate Office of the Deputy Assistant Secretary for Administration contains the Administrative Services Team, the Budget Team, and the Physical Security and Safety Team.
The Administrative Services Team provides direction in meeting the human capital management needs within ODASA. The Team provides leadership, guidance, oversight and liaison functions for ODASA personnel-related issues and activities as well as other administrative functions within ODASA. The Team coordinates with the Office of the Secretary to provide ODASA staff with a full array of personnel services, including position management, performance management, employee recognition, staffing, recruitment, employee and labor relations, employee assistance, payroll liaison, staff development and training, and special hiring and placement programs. The Team develops and maintains systems to track personnel actions to keep the Deputy Assistant Secretary for Administration and ODASA Office Directors informed about the status of personnel actions, employee programs, services and benefits.
The Budget Team manages the formulation and execution of ODASA's federal administration budget and assigned ACF program and common
The Physical Security and Safety Team is responsible for planning, managing, and directing ACF's safety, security, and emergency management programs. The Team serves as the lead for ACF in coordination and liaison with Departmental, General Services Administration (GSA) and other Federal agencies on implementation of Federal physical security directives. The Team serves as lead for all tenant security matters in the Aerospace Building. The Team is responsible for planning and executing ACF's environmental health program, and ensuring that appropriate occupational health and safety plans are in place. The Team is responsible for issuing, managing and controlling badge and cardkey systems to control access to agency space for security purposes.
B.
OIS plans, manages, maintains and operates ACF's local area networks, nationwide area network and personal computers; provides for equipment and software acquisition, maintenance and user support for end-user computing; and manages and maintains a Help Desk for ACF users. OIS develops and implements policies and plans for and acquires and manages data communications services; and provides liaison with HHS, GSA and private firms on data communications equipment and systems. OIS designs, develops, implements and maintains application systems to support ACF budget, program and administrative systems. The Office provides technical assistance to ACF program offices procuring system support services; technical assistance to State and local agencies on ACF computer systems; develops software policy, procedures, standards and guidelines; and conducts required Departmental reviews of ADP systems.
OIS designs, develops, and maintains system support for e-government activities; provides technical assistance to ACF program offices for e-government support services; and provides technical assistance on e-government systems to State and local agencies. The Office develops and/or implements agency telecommunications management policy in accordance with Federal regulations and procedures. The Office reviews and directs payment of agency telephone invoices. It recommends and advises on the design and function of telecommunications systems, based on user needs, costs and technological availability. The Office communicates with private industry service providers to coordinate the acquisition, installation and maintenance of voice/data telecommunications equipment and systems.
It is responsible for other sources of communications such as pagers, cellular phone service, cable TV service, and audio conferencing equipment and service. It updates and maintains the databases for telephone lines and equipment inventories.
OIS establishes, implements, maintains and oversees an IT security program that assures adequate security is provided for all agency information collected, processed, transmitted, stored or disseminated in general support systems and applications. The Office develops and implements ACF policies, standards and procedures consistent with government-wide IT security policies; conducts the ACF system security activities required by OMB IT security directives; develops, implements and maintains a security training plan for IT professionals; and provides security awareness training for all ACF staff.
II.
The Office provides guidance, analysis, technical assistance, and oversight to ACF programs and across programs in the agency on: strategic planning aimed at measurable results; performance measurement; research and evaluation methodologies; demonstration testing and model development; statistical, policy and program analysis; synthesis and dissemination of research and demonstration findings; application of emerging technologies to improve the effectiveness of programs and service delivery; and coordinates mandated OMB information collection approvals and plans.
The Office, through the Division of Economic Independence and the Division of Child and Family Development, oversees and manages the research programs under sections 413 and 1110 of the Social Security Act, including: priority settings and analysis; managing and coordinating major cross-cutting, leading-edge studies and special initiatives; and collaborating with states, communities, foundations, professional organizations and others to promote the development of children, family-focused services, parental responsibility, employment, and economic independence. Through the Division of Child and Family Development, the Office also oversees and manages the research, demonstration, and evaluation activities under Section 649 of the Head Start Act. In addition, the Office also provides coordination and leadership in implementing the Government Performance and Results Act (GPRA).
III.
A.
Notice is hereby given that under the authority vested in the Assistant Secretary for Children and Families by the memorandum dated November 14, 1991, from the Assistant Secretary for Management and Budget, I hereby delegate to the Director, Office of Planning, Research and Evaluation, the following authorities:
(a) Authorities Delegated.
1. Authority for the preparation and processing of clearances for collections of information, as well as assuring compliance with related policies, standards, procedures and instructions emanating from the OMB, and the Office of the Secretary, Assistant Secretary for Administration, Office of the Chief Information Officer.
2. Authority to review and approve Class C (routine) Collections of Information from the public prior to the submission of these requests to OMB, except where expedited review by OMB is required.
3. Authority to approve, for publication in the
4. Authority to manage ACF's burden reduction program within the ceiling issued by the Department.
5. Authority to manage all other related paperwork reduction staff work, such as direct communication with OMB on routine reports clearance issues.
(b) Limitations.
1. National Performance Review suggestions to reduce OMB clearance will be taken into consideration.
2. These authorities may be redelegated (1) to officials who are outside the program operation chain but are not below the grade (or equivalent) of deputy assistant secretary, or (2) with the prior approval of the Chief Information Officer to other employees.
3. This delegation of authority shall be exercised under the Department's existing policies on delegations and regulations.
(c) Effect on Existing Delegations.
This delegation supersedes any previous delegation of authority pertaining to authorities delegated herein.
(d) Effective Date.
This delegation is effective on the date of signature.
I hereby affirm and ratify any actions taken by the Director, Office of Planning, Research and Evaluation, which involved the exercise of this authority prior to the effective date of this delegation.
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; revision of a currently approved information collection; OMB No. 1660-0015; FEMA Form 086-0-26 Property Information; FEMA Form 08-0-26A Elevation; FEMA Form 086-0-26B Community Acknowledgement; FEMA Form 086-0-22, Application Form for Single Residential Lot or Structure Amendments to National Flood Insurance Program Maps; FEMA Form 086-0-22A, Application Form for Single Residential Lot or Structure Amendments to National Flood Insurance Program Maps (Spanish).
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this Notice seeks comments concerning information required by FEMA to amend or revise National Flood Insurance Program Maps to remove certain property from the 1-percent annual chance floodplain.
Comments must be submitted on or before September 20, 2010.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
(4)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Ms. Ava Hammond, Program Analyst, Mitigation Directorate, Risk Analysis Division, FEMA at (202) 646-3276 for additional information. You may contact the Office of Records Management for copies of the proposed collection of information at facsimile number (202) 646-3347 or e-mail address:
With the passage of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice; 60-day notice and request for comments; revision of a currently approved information collection; OMB No. 1660-0023; FEMA Form 086-0-28, Community Visit Report; FEMA Form 086-0-29, Community Contact Report.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this Notice seeks comments concerning the collection of information through the Community Visit Report and the Community Contact Report to assure that communities are achieving flood loss reduction objectives. The two key methods FEMA uses in determining community assistance needs to meet these objectives are through the Community Assistance Contact (CAC) and Community Assistance Visit (CAV), which serve to provide a systematic means of monitoring community National Flood Insurance Program (NFIP) compliance.
Comments must be submitted on or before September 20, 2010.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
(4)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Rachel Sears, Program Specialist, Risk Reduction Division, Federal Emergency Management Agency, (202) 646-2977 for additional information. You may contact the Records Management Division for copies of the proposed collection of
The Department of Homeland Security's Federal Emergency Management Agency (FEMA) administers the National Flood Insurance Program (NFIP) (codified at 42 U.S.C. 4001,
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
Each year the Federal Emergency Management Agency (FEMA) is required by the Write-Your-Own (WYO) Program Financial Assistance/Subsidy Arrangement (Arrangement) to notify private insurance companies (Companies) and to make available to the Companies the terms for subscription or re-subscription to the Arrangement. In keeping with that requirement, this notice provides the terms to the Companies to subscribe or re-subscribe to the Arrangement.
Edward L. Connor, DHS/FEMA, 1800 South Bell Street, Room 720, Arlington, VA 20598-3020, 202-646-3429 (phone), 202-646-3445 (facsimile), or
Under the Write-Your-Own (WYO) Program Financial Assistance/Subsidy Arrangement (Arrangement), (90 as of June 1, 2010) private sector property insurers issue flood insurance policies
Though not substantive, there has been a recent change to the marketing guidelines discussed in the Arrangement. As noted in the first sentence of the third paragraph of 44 CFR part 62, appendix A, Article III. B. of the Arrangement:
[t]he amount of expense allowance retained by the Company may increase a maximum of two percentage points, depending on the extent to which the Company meets the marketing goals for the Arrangement year contained in marketing guidelines established pursuant to Article II.G.
The marketing incentive percentage will remain the same. However, through a separate document the National Flood Insurance Program is revising its targeted goals regarding the criteria for growth.
During August 2010, FEMA will send a copy of the offer for the FY2011 Arrangement, together with related materials and submission instructions, to all private insurance companies participating under the current FY2010 Arrangement. Any private insurance company not currently participating in the WYO Program but wishing to consider FEMA's offer for FY2011 may request a copy by writing: DHS/FEMA, Mitigation Directorate, Attn: Edward L. Connor, WYO Program, 1800 South Bell Street, Room 720, Arlington, VA 20598-3020, or contact Edward Connor at 202-646-3445 (facsimile), or
Fish and Wildlife Service, Interior.
Notice of intent and notice of meeting.
Under the National Environmental Policy Act (NEPA), we, the U.S. Fish and Wildlife Service (Service or “we”), advise the public that we intend to gather information necessary to prepare an Environmental Impact Statement (EIS) on the proposed incidental take permit and associated Habitat Conservation Plan for the Beech Ridge Wind Energy Project (HCP). The proposed HCP is being prepared under the Endangered Species Act of 1973, as amended (ESA). The incidental take permit is needed to authorize the incidental take of listed species as a result of implementing activities covered under the proposed HCP.
We provide this notice to: (1) Describe the proposed action and possible alternatives; (2) advise other Federal and State agencies, affected tribes, and the public of our intent to prepare an EIS; (3) announce the initiation of a 30-day public scoping period; and (4) obtain suggestions and information on the scope of issues and alternatives to be included in the EIS.
An “open-house” public meeting will be held on August 9, 2010, from 6 p.m. to 9 p.m. To ensure consideration, please send your written comments for receipt on or before August 23, 2010.
The public meeting will be held at the Community Center, 604 Nicholas Street, Rupert, WV 25984. Information, written comments, or questions related to the preparation of the EIS and NEPA process should be submitted to Ms. Laura Hill, Assistant Field Supervisor, by U.S. mail at U.S. Fish and Wildlife Service, West Virginia Field Office, 694 Beverly Pike, Elkins, WV 26241; by facsimile at (304) 636-7824; or by electronic mail (e-mail) at
Ms. Laura Hill (
Persons needing reasonable accommodations in order to participate in the public meeting should contact Laura Hill (
Section 9 of the ESA and Federal regulations prohibit the “take” of fish and wildlife species listed as endangered or threatened. Under the ESA, the following activities are defined as take: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or to attempt to engage in such conduct (16 U.S.C. 1538). However, under section 10(a) of the ESA, we may issue permits to authorize “incidental take” of listed species. Incidental take is defined by the ESA as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing permits for threatened and endangered species are at 50 CFR 13 and 50 CFR 17.
On December 8, 2009, the U.S. District Court of Maryland ruled that Beech Ridge Energy LLC was in violation of section 9 of the ESA for its potential to take endangered Indiana bats (
The District Court ruled that Beech Ridge Energy LLC's construction and operation of wind turbines (40 in construction at the time, with a total of 124 hoped for by the end of 2010) would violate section 9 of the ESA unless and until the defendants, Beech Ridge Energy LLC, obtained an incidental take permit. The Court enjoined Beech Ridge Energy LLC from building additional turbines beyond the 40 already under construction, and restricted turbine operation to the bat hibernation season (November 15 to March 31) until Beech Ridge Energy LLC obtains an incidental take permit. The Court also invited the parties to confer on whether they could agree on terms for further turbine operation while Beech Ridge Energy LLC pursued an incidental take permit.
Under the terms of a settlement agreement reached between Beech Ridge Energy LLC and plaintiffs (Animal Welfare Institute, Mountain Communities for Responsible Energy, and David G. Cowan) on January 23, 2010, Beech Ridge Energy LLC has agreed not to build 24 of the original 124 turbines that are closest to known bat hibernacula. While the HCP is under development, the plaintiffs agreed that Beech Ridge Energy LLC may construct an additional 27 turbines (in addition to the 40 already under construction) and may operate these 67 turbines during specified times of the day and year when bats normally are not flying about and, thus, would not be at risk of mortality or injury from turbine operation.
Consistent with the court order and settlement agreement, Beech Ridge Energy LLC has indicated its intent to pursue an incidental take permit. Section 10(a)(1)(B) of the ESA authorizes the Service to issue incidental take permits to non-Federal land owners for the take of endangered and threatened species, provided that, among other requirements, the take will be incidental to otherwise lawful activities, will not appreciably reduce the likelihood of the survival and recovery of the species in the wild, and will be minimized and mitigated to the maximum extent practicable.
In accordance with section 10(a)(2)(A) of the ESA of 1973, as amended (ESA; 16 U.S.C. 1531
Beech Ridge did not seek incidental take coverage for the construction of its first 67 turbines. But it now seeks to develop an HCP and seek a permit for covered activities that include the construction of up to 33 additional turbines (including associated construction and upgrade of access roads, and construction of staging areas and collection line trenches for these turbines), operation of the full array of 100 turbines, maintenance of an existing transmission line, and maintenance and decommissioning of the Beech Ridge Wind Energy Project. Permit coverage may also include certain off-site mitigation activities such as habitat enhancement and installation of cave gates to benefit listed bats. Construction, operation, and decommissioning of the project, and actions to minimize and mitigate impacts, have the potential to take wildlife species protected under the ESA.
The proposed HCP would describe how the effects of the covered activities would be minimized, mitigated, and monitored under the conservation program. Program components would likely include avoidance and minimization measures (such as studies to test and then implement turbine operational changes that effectively reduce mortality and injury of listed bats and other wildlife), long-term monitoring, adaptive management, and mitigation measures consisting of on-site and/or off-site habitat protection and/or enhancement.
Beech Ridge Energy LLC is developing a wind power project in Greenbrier and Nicholas Counties, West Virginia. The project would be located on approximately 32 kilometers (km) (20 miles (mi)) of ridge lines, approximately 8 km (5 mi) northwest of the town of Trout, about 11 km (7 mi) north-northwest of Williamsburg, and about 14 km (9 mi) northeast of downtown Rupert.
Phase 1 of the Project consists of 67 existing wind turbines and associated collection lines, access road, transmission lines, a substation, an operations and maintenance facility, temporary staging areas, and a concrete batch plant. Beech Ridge Energy LLC constructed 57 of these turbines between June 2009 and March 2010 and plans to construct the remaining 10 Phase 1 wind turbines before August 15, 2010. Beech Ridge Energy LLC proposes to construct an additional 33 turbines upon issuance of an incidental take permit.
Existing wind turbines constructed during Phase 1 of the project consist of 67 General Electric 1.5-Megawatt wind turbines, each with a 77-meter (m) (253-foot (ft)) rotor diameter, and a rotor swept area of 4,654 square m (50,095 square ft). The 33 additional wind turbines would have a maximum 100-m (328-ft) rotor diameter, with a rotor swept area of 7,875 square m (84,454 square ft).
The wind turbine hub height for the existing 67 turbines is 80 m (262 ft). The additional 33 turbines would have a hub height of up to 100 m (328 ft), for an approximate total height of 117-150 m (389-492 ft) at the rotor apex. Installation of each individual turbine, including access roads, equipment laydown yards, and other supporting infrastructure, will temporarily impact an area of approximately 4.0 acres, while the final footprint of each turbine will be approximately 0.3 acre.
In addition to wind turbines, the project would include the following components:
(1) The project site is accessed using existing county public roadways and privately owned timber roads, plus existing upgraded or newly constructed all-weather access roads. The main access route for the project, including equipment deliveries, will be via County Road 1 North from Rupert to Clearco. An estimated 31,245 ft of existing roads were upgraded and approximately 40,620 ft of new access roads were or will be constructed for the 100-turbine project. Access roads to the turbines will have a temporary width of up to 18.2 m (60 ft) during construction, and a permanent width of 4.9 m (16 ft).
(2) A power collection system delivers power generated by the wind turbines to the project substation. Collector cables placed in trenches and buried underground connect the wind turbines. The underground collection system terminates at the project substation.
(3) A transmission line to connect the project to the existing electric power grid was constructed in 2009. It extends approximately 22.7 km (14.2 mi) northwest from the turbine strings to Allegheny Power's Grassy Falls Substation north of the community of Grassy Falls in Nicholas County, West Virginia. Temporary ground disturbance may be necessary during the life of the project to maintain the transmission line.
(4) An operations and maintenance (O&M) facility is currently being constructed to serve the project, including a main building with the Supervisory Control and Data Acquisition System, offices, spare parts storage, restrooms, a shop area, outdoor parking facilities, a turnaround area for larger vehicles, outdoor lighting, and a gated access with partial or full-perimeter fencing.
Routine maintenance consists primarily of daily travel by technicians that test and maintain the wind turbines. O&M staff travel in pickup or other light-duty trucks. Occasionally, the use of a crane or equipment transport vehicles will be necessary for cleaning, repairing, adjusting, or replacing the rotors or other components of the wind turbines. Cranes used for maintenance activities
Operations monitoring will be conducted from computers located in the base of each wind turbine tower and from the O&M building and other remote locations using telecommunication links and computer-based monitoring. Over time, it will be necessary to clean or repaint the blades and towers and periodically exchange lubricants and hydraulic fluids in the mechanisms of the wind turbines.
Decommissioning would involve removing the wind turbines, support towers, transformers, substation, and the upper portion of foundations. Site reclamation after decommissioning would be based on site-specific requirements and techniques commonly employed at the time the site is reclaimed. Techniques could include regrading, spot replacement of topsoil, and revegetation of all disturbed areas with an approved native seed mix. Wind turbine tower and substation foundations would be removed to a below-ground depth as agreed upon with landowners.
Approximately 200 workers have been or will be employed over the course of construction. During its year-round operation, there will be 8 to 18 permanent full-time and/or part-time employees on the O&M staff. The project is expected to function for at least 20 years.
The project is located in a rural setting, with the landscape primarily composed of forested areas that are actively cut for timber and coal mining. Several small towns (Trout, Williamsburg, Rupert) occur near the project area, but no homes or residential areas occur within the project.
The HCP and permit will contain provisions to monitor and report on the impacts from the project on birds and bats, as well as the effects of operational changes on wildlife mortality within the wind farm. In addition, any required tree clearing will be conducted during winter when bats are hibernating, unless otherwise authorized by the Service. Other methods to mitigate impacts from the project that may be considered include, but are not limited to, protection and enhancement of Indiana bat habitat outside the project area.
We have selected Stantec to prepare the EIS for proposed issuance of an ESA incidental take permit to Beech Ridge LLC. The document will be prepared in accordance with requirements of NEPA, as amended (42 U.S.C. 4321
The EIS will consider the proposed action, the issuance of a Section 10(a)(1)(B) permit under the ESA, no action (no permit), and a reasonable range of alternatives. A detailed description of the impacts of the proposed action and each alternative will be included in the EIS. We are currently in the process of developing alternatives for analysis. The alternatives to be considered for analysis in the EIS may include: Variations in the scope of covered activities; variations in curtailment of wind turbine operations; variations in the location, amount, and type of conservation; variations in permit duration; variations in monitoring the effectiveness of permit conditions; or a combination of these elements. We will consider other reasonable project alternatives recommended during this scoping process in order to develop a full range of alternatives.
The EIS will also identify direct, indirect, and cumulative impacts on biological resources, land use, air quality, water quality, water resources, socioeconomics, and other environmental issues that could occur with the implementation of the proposed actions and alternatives. For all potentially significant impacts, the EIS will identify avoidance, minimization, and mitigation measures to reduce these impacts, where feasible, to a level below significance.
Review of the EIS will be conducted in accordance with the requirements of NEPA, Council on the Environmental Quality Regulations (40 CFR 1500-1508), the Administrative Procedure Act (5 U.S.C. 551
We request data, comments, new information, or suggestions from the public, other concerned governmental agencies, the scientific community, tribes, industry, or any other interested party on this notice. We will consider all comments we receive in complying with the requirements of NEPA and in the development of an HCP and incidental take permit. We particularly seek comments concerning: (1) Biological information concerning the Indiana bat and Virginia big-eared bat, as well as unlisted bats and birds; (2) relevant data concerning wind power and bat and bird interactions; (3) additional information concerning the range, distribution, population size, and population trends of the Indiana bat and Virginia big-eared bat, as well as unlisted bats and birds; (4) current or planned activities in the subject area and their possible impacts on the environment and resources; (5) the presence of facilities within the project area that are eligible to be listed on the National Register of Historic Places or whether other historical, archeological, or traditional cultural properties may be present; (6) the direct, indirect, and cumulative effects that implementation of any reasonable alternatives could have on endangered and threatened species and their habitats, as well as unlisted bats and birds; (7) adequacy and advisability of proposed minimization and mitigation measures for ESA-listed species and other wildlife; (8) post-construction monitoring techniques; and (9) identification of any other environmental issues that we should consider with regard to the proposed development and permit action.
Written comments from interested parties are welcome to ensure that the full range of issues related to the permit request is identified. Comments will only be accepted in written form. You may submit written comments at the public meeting, or by regular mail, e-mail, or facsimile transmission (
All comments and materials we receive, including names and addresses, will become part of the administrative record and may be released to the public. Comments we receive will be available for public inspection, by appointment, during normal business hours (Monday through Friday; 8 a.m. to 4 p.m.) at the Service's West Virginia Field Office (
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold personally identifying
The primary author of this notice is Laura Hill, U.S. Fish and Wildlife Service, West Virginia Field Office.
The authority for this section is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
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 Denver Museum of Nature & Science, Denver, CO. The human remains and associated funerary objects were removed from Grand County, UT; possibly eastern Utah or western Colorado; Montezuma County, CO; and the American “Southwest.”
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 and associated funerary objects from the Rocky Mountains West was made by Denver Museum of Nature & Science professional staff in consultation with representatives of the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Fort Mojave Indian Tribe of Arizona, California & Nevada; Fort Sill Apache Tribe of Oklahoma; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, 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; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Shoshone Tribe of the Wind River Reservation, Wyoming; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Tohono O'odham Nation of Arizona; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Ysleta del Sur Pueblo of Texas; Zuni Tribe of the Zuni Reservation, New Mexico, and the Southern Paiute Consortium, a non-federally recognized Indian group.
In the 1940s, human remains representing a minimum of four individuals were likely removed during excavations in eastern Utah or western Colorado by H. Marie Wormington, archeologist. In 1993, Wormington donated these remains to the museum (DMNS catalogue (and CUI numbers) A1985.1 (CUI 24), A1985.2 (CUI 25), A1985.3 (CUI 26), and A1985.4 (CUI 27)). Remains include one adult female found with unshaped rocks (not collected), one child of indeterminate sex, and two adults of indeterminate sex. Most of these individuals are represented by fragmentary remains. Newspaper wrappings around the remains are dated to March 12, 1949. Wormington's field expeditions during this time focused on the area between Utah and Colorado. No known individuals were identified. No associated funerary objects are present.
In 1938, human remains representing a minimum of five individuals were excavated at the Turner-Look Site near Cisco, Grand County, UT, by Wormington. The human remains were removed during legal excavation on private land. The human remains were accessioned into the museum collection (A533.4A (CUI 28), A533.5C (CUI 29), A533.5B (CUI 30), A533.5C (CUI 31), and A533.6A (CUI 32)). Remains include one child, which was reportedly found with seven associated funerary objects, but only three were collected and in the museum's possession. The additional human remains are composed of one infant and three adult males (one with associated pottery sherds). When excavated these remains were defined within the then incipient culture type “Fremont” although this designation as it was then understood is ambiguous in today's archeological lexicon. No known individuals were identified. The four associated funerary objects are one small circular slate plaque (A533.4B), one stone metate (A533.7A), one lot of shell fragments (A533.36), and one lot of pottery sherds (A533.6B).
In 1968, Francis V. Crane and Mary W.A. Crane donated a hair bundle representing one individual to the museum (AC.7653; CUI 33). Documents indicate the hair was taken from the middle of Montezuma County, CO, in Mitchell Canyon, by Ezra Hambelton. In 1964, the Cranes purchased the hair bundle from the Fred Harvey Company. This bundle of hair is wrapped with a fiber around the middle. The hair is cut straight and is black-brown in color. No known individual was identified. No associated funerary objects are present.
In 1981, the cranium of an adult male was accessioned. The accession records indicate the individual is a “Pueblo Indian, Southwest” (A1150.1; CUI 34). In 1983, two individuals, represented by the right arm bone of an adult of indeterminate sex (AC.2874; CUI 35) and two leg bones of an adult of indeterminate sex (AC.4896A-B; CUI 36), were accessioned. These individuals were originally acquired by the Cranes from Gans, Inc. Southwest Arts and Crafts sometime between 1954 and 1959. Documents indicate these individuals are from the “Southwest.” In 1986, two individuals were accessioned (A1988.1; CUI 38 and A1989.1; CUI 39).
Insufficient geographical, kinship, biological, archeological, linguistic, folkore, oral tradition, historical evidence, other information or expert opinion exists to reasonably establish cultural affiliation of the above individuals with any present-day Indian tribe, although non-destructive physical anthropological evidence, contextual information, documentary evidence, and collector and institutional histories support Native American identity.
Officials of the Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of 16 individuals of Native American ancestry. Officials of the Denver Museum of Nature & Science also have determined that, pursuant to 25 U.S.C. 3001(3)(A), the four 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 Denver Museum of Nature & Science have determined that, pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for the disposition of culturally unidentifiable human remains. The Denver Museum of Nature & Science has determined that the human remains are “culturally unidentifiable” under NAGPRA. In 2009, during a major inter-tribal consultation meeting and through additional consultation with individual tribes, an intertribal agreement was established, for disposition of the remains and funerary objects to the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; Pueblo of Zia, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico. In the agreement, the Hopi Tribe of Arizona was designated as the lead in reburying 11 individuals. In addition, the Hopi Tribe of Arizona will rebury five of the individuals (CUIs 28-32) with the assistance of the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah. This agreement was presented to the Review Committee on October 30, 2009. Pursuant to this agreement, the Denver Museum of Nature & Science requested that the Review Committee recommend the disposition of the culturally unidentifiable Native American human remains and associated funerary objects to the Hopi Tribe of Arizona. The Review Committee considered the request and recommended the disposition. The Secretary of the Interior agreed with the Review Committee's recommendation. A March 4, 2010, letter from the Designated Federal Officer, writing on behalf of the Secretary of the Interior, transmitted the authorization for the Denver Museum of Nature & Science to effect disposition of the physical remains of the culturally unidentifiable individuals and the associated funerary objects to the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; Pueblo of Zia, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico, contingent upon the publication of a Notice of Inventory Completion in the
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Dr. Chip Colwell-Chanthaphonh, Denver Museum of Nature & Science, 2001 Colorado Blvd., Denver, CO 80205, telephone (303) 370-6378, before August 23, 2010. Disposition of the Native American human remains and associated funerary objects to the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; Pueblo of Zia, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico, may proceed after that date if no additional claimants come forward.
The Denver Museum of Nature & Science is responsible for notifying the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Fort Mojave Indian Tribe of Arizona, California & Nevada; Fort Sill Apache Tribe of Oklahoma; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, 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; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Shoshone Tribe of the Wind River Reservation, Wyoming; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Shoshone-Paiute Tribes of the Duck Valley Reservation, Nevada; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Tohono O'odham Nation of Arizona; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Ysleta del Sur Pueblo of Texas; Zuni Tribe of the Zuni Reservation, New Mexico; and the Southern Paiute Consortium, a non-federally recognized Indian group, 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 and associated funerary objects in the control of the University of Colorado Museum, Boulder, CO. The human remains were removed from Grand County, UT, and Mesa County, CO.
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 the University of Colorado Museum professional staff in consultation with representatives of the Apache Tribe of Oklahoma; Bridgeport Paiute Indian Colony of California; Comanche Nation, Oklahoma; Confederated Tribes of the Goshute Reservation, Nevada and Utah; Death Valley Timbi-Sha Shoshone Band of California; Duckwater Shoshone Tribe of the Duckwater Reservation, Nevada; Ely Shoshone Tribe of Nevada; Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon; Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Kiowa Indian Tribe of Oklahoma; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Lovelock Paiute Tribe of the Lovelock Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico & Utah; Northwestern Band of the Shoshoni Nation of Utah (Washakie); Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, and Shivwits Band of Paiutes); Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California; Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Reno-Sparks Indian Colony, Nevada; San Juan Southern Paiute Tribe of Arizona; Shoshone Tribe of the Wind River Reservation, Wyoming; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Shoshone Paiute Tribes of the Duck Valley Reservation, Nevada; Skull Valley Band of Goshute Indians, Utah; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Summit Lake Paiute Tribe of Nevada; Susanville Indian Rancheria, California; Te-Moak Tribe of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Walker River Paiute Tribe of the Walker River Reservation, Nevada; Winnemucca Indian Colony of Nevada; Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch, Nevada; Yomba Shoshone Tribe of the Yomba Reservation, Nevada; and Zuni Tribe of the Zuni Reservation, New Mexico.
In 1951, human remains representing a minimum of two individuals were removed from Luster Cave site, Grand County, UT, with the landowner's permission by a field crew under the direction of Robert H. Lister of the University of Colorado, Boulder, Department of Anthropology, and Herbert W. Dick of the University of Colorado Museum. Luster Cave was on property owned by James J. Luster and located west of the Little Dolores River. No known individuals were identified. The one associated funerary object is a rabbit fur blanket.
The human remains are Native American based on site dates, stratigraphy, and the associated funerary object/burial context. The archeological evidence provides a date range of 1700 B.C. -A.D. 1300 for the Luster Cave site. Based on the stratigraphical evidence, the remains of an infant found wrapped in the rabbit fur blanket that was tied with yucca fiber are reasonably believed to date to A.D. 1300 or later. Based on the stratigraphy at the site, the second individual, represented by a single tooth cap found 48-60” below the surface, is reasonably believed to predate the infant burial.
In 1951, human remains representing two individuals were removed from 5ME449, Roth Cave site, Mesa County, CO, with the landowner's permission by a field crew under the direction of Lister and Dick. Roth Cave was on property owned by J.D. Roth and located north of the Little Dolores River. No known individuals were identified. The one associated funerary object is shredded juniper bark wrapping.
The human remains are Native American based on site dates, stratigraphy, and the associated funerary object/burial context. Roth Cave site dates archeologically to A.D. 500-1100. Based on the stratigraphical evidence, the remains of a child, found wrapped in the shredded juniper bark, are reasonably believed to date to A.D. 1100 or later. Based on the stratigraphy at the site, the second individual, represented by adult teeth, found below the surface, is reasonably believed to predate the child burial.
In 1951, human remains representing one individual were removed from 5ME453, Arroyo Site C2-2, Mesa County, CO, by a field crew under the direction of Lister and Dick. Arroyo Site C2-2 site was on property owned by J.D. Roth and located just north of the Little Dolores River, on the north side of Sieber Canyon. No known individual was identified. No associated funerary objects are present.
The human remains are Native American based on the site dates, and the orientation and position of the burial. Arroyo Site C2-2 dates archeologically to A.D. 500-1000.
Officials of the University of Colorado Museum have determined that, pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of five individuals of Native American ancestry. Officials of the University of Colorado Museum also have determined that, pursuant to 25 U.S.C. 3001(3)(A), the two 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 University of Colorado Museum have determined that, pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot reasonably be traced between the Native American human remains and associated funerary objects and any present-day Indian tribe.
The Native American Graves Protection and Repatriation Review Committee (Review Committee) is responsible for recommending specific actions for the disposition of culturally unidentifiable human remains. In October 2009, the University of Colorado Museum requested that the Review Committee recommend the disposition of the culturally unidentifiable human remains to the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, based on Ute aboriginal land claims supported by oral tradition, as well as the support of other Indian tribes that were consulted. The Comanche Nation, Oklahoma; Hopi Tribe of Arizona; and Susanville Indian Rancheria, California, signed the disposition agreement in support of the disposition to the Ute Mountain Tribe. Furthermore, none of the Indian tribes consulted objected to the determination of the “culturally unidentifiable” status
The Review Committee considered the proposal at its October 30-31, 2009, meeting and recommended the disposition of the human remains and associated funerary objects to the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah. The Secretary of the Interior agreed with the Review Committee's recommendation. An April 19, 2010, letter from the Designated Federal Officer, writing on behalf of the Secretary of the Interior, transmitted the authorization for the University of Colorado Museum to effect disposition of the physical remains of the culturally unidentifiable individuals to the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, contingent on the publication of a Notice of Inventory Completion in the
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Steve Lekson, Curator of Anthropology, University of Colorado Museum, in care of Jan Bernstein, Bernstein & Associates, 1041 Lafayette St., Denver, CO 80218, telephone (303) 894-0648, before August 23, 2010. Disposition of the human remains and associated funerary objects to the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah, may proceed after that date if no additional claimants come forward.
The University of Colorado Museum is responsible for notifying the Apache Tribe of Oklahoma; Bridgeport Paiute Indian Colony of California; Comanche Nation, Oklahoma; Confederated Tribes of the Goshute Reservation, Nevada and Utah; Death Valley Timbi-Sha Shoshone Band of California; Duckwater Shoshone Tribe of the Duckwater Reservation, Nevada; Ely Shoshone Tribe of Nevada; Fort McDermitt Paiute and Shoshone Tribes of the Fort McDermitt Indian Reservation, Nevada and Oregon; Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Kiowa Indian Tribe of Oklahoma; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Lovelock Paiute Tribe of the Lovelock Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Navajo Nation, Arizona, New Mexico & Utah; Northwestern Band of the Shoshoni Nation of Utah (Washakie); Paiute Indian Tribe of Utah; Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, California; Paiute-Shoshone Tribe of the Fallon Reservation and Colony, Nevada; Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada; Reno-Sparks Indian Colony, Nevada; San Juan Southern Paiute Tribe of Arizona; Shoshone Tribe of the Wind River Reservation, Wyoming; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Shoshone Paiute Tribes of the Duck Valley Reservation, Nevada; Skull Valley Band of Goshute Indians, Utah; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Summit Lake Paiute Tribe of Nevada; Susanville Indian Rancheria, California; Te-Moak Tribe of Western Shoshone Indians of Nevada; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah; Walker River Paiute Tribe of the Walker River Reservation, Nevada; Winnemucca Indian Colony of Nevada; Yerington Paiute Tribe of the Yerington Colony & Campbell Ranch, Nevada; Yomba Shoshone Tribe of the Yomba Reservation, Nevada; and Zuni Tribe of the Zuni Reservation, New Mexico, 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 associated funerary objects in the control of the Robert S. Peabody Museum of Archaeology, Phillips Academy, Andover, MA. The associated funerary objects were removed from the Tecolote Pueblo ruin, San Miguel County, NM.
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 associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the associated funerary objects was made by Robert S. Peabody Museum of Archaeology professional staff in consultation with representatives of the Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico (formerly Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico.
In 1929, human remains representing 12 individuals and 7 lots of associated funerary objects were removed from the Tecolote Pueblo ruin (LA296), San Miguel County, NM, by Alfred V. Kidder under the auspices of the Phillips Academy, Andover, MA. Kidder acquired the collection for the museum as part of the Andover Pecos Expedition. On October 28, 1936, the human remains were donated to the Peabody Museum of Archaeology and Ethnology at Harvard University, Cambridge, MA (a completely separate institution from the Robert S. Peabody Museum of Archaeology). The Robert S. Peabody Museum of Archaeology retained control of the associated funerary objects, two of which are currently missing. The missing associated funerary objects are a bone awl and one lot of olla sherds. The five associated funerary objects are one shell bead necklace (restrung), one fragmented Haliotis shell disc (pendant), an Olivella shell bead necklace, one quartzite projectile point, and one clay “cloud-blower” pipe.
Tecolote Pueblo ruin is located near Tecolote Creek, San Miguel County, NM. Similarities in site architecture, including Kivas and material culture, associated funerary objects, and
A relationship of shared group identity can be reasonably traced between the Ancestral Puebloan culture found at Tecolote Pueblo ruin and modern-day Puebloan people represented by the Hopi Tribe, Ohkay Owingeh, Pueblo of Acoma, Pueblo of Cochiti, Pueblo of Isleta, Pueblo of Jemez, Pueblo of Laguna, Pueblo of Nambe, Pueblo of Picuris, Pueblo of Pojoaque, Pueblo of San Felipe, Pueblo of San Ildefonso, Pueblo of Sandia, Pueblo of Santa Ana, Pueblo of Santa Clara, Pueblo of Santo Domingo, Pueblo of Taos, Pueblo of Tesuque, Pueblo of Zia, Ysleta del Sur Pueblo, and Zuni Tribe.
There is continuity in architecture from this site to modern-day Pueblos. There is also continuity in the style of the associated funerary objects, including the shell personal adornments, with those made and used by modern-day Puebloan people. Evidence supports continuity in material culture with the Pueblo of Isleta, Pueblos of Picuris, and Pueblo of Taos based on evidence provided during consultation. Based on oral tradition evidence, the Pueblo of Acoma, Pueblo of Cochiti, Pueblo of Picuris, Pueblo of Pojoaque, Pueblo of Santo Domingo, Pueblo of Sandia, Pueblo of Tesuque, and Pueblo of Zia identify Pecos Pueblo and Tecolote Pueblo as a site of occupation, pilgrimage, hunting, and trade.
Jemez Pueblo oral tradition identifies this site as a precursor to Pecos Pueblo, a site closely associated with Jemez Pueblo, which was occupied from approximately A.D. 1100 to 1700. Oral tradition of other Pueblos includes trade expeditions and pilgrimages to the Tecolote Pueblo area. Historic records document Pecos Pueblo occupation from Spanish contact to approximately A.D. 1838 when the last inhabitants left and moved to the Pueblo of Jemez. In 1936, an Act of Congress recognized the Pueblo of Jemez as a “consolidation” and “merger” of the Pecos Pueblo and Pueblo of Jemez. All property, rights, titles, interests, and claims of both Pueblos were consolidated under the Pueblo of Jemez. Additional evidence supporting a shared group identity between the descendants of the Pecos and Jemez Pueblos emerges in numerous aspects of present-day Jemez life and are documented in a 1992-1993 study, entitled “Pecos Ethnographic Project.”
Navajo Nation oral history, which includes stories, songs and prayers, supports a relationship with sites of Ancestral Puebloan occupation such as Mesa Verde and Chaco Canyon, as well as some cultural practices shared with modern Pueblo people. But there is not a preponderance of evidence to support a relationship of shared group identity under NAGPRA with the Tecolote Pueblo ruin.
Officials of the Robert S. Peabody Museum of Archaeology have determined that, pursuant to 25 U.S.C. 3001(3)(A), the five 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 Robert S. Peabody Museum of Archaeology 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 associated funerary objects and the Hopi Tribe of Arizona; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the associated funerary objects should contact Malinda Blustain, Director, Robert S. Peabody Museum of Archaeology, Phillips Academy, 175 Main St., Andover, MA 01810, telephone (978) 749-4493, before August 23, 2010. Repatriation of the associated funerary objects to the Hopi Tribe of Arizona; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico, may proceed after that date if no additional claimants come forward.
The Robert S. Peabody Museum of Archaeology is responsible for notifying the Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, 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, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta del Sur Pueblo of Texas; and Zuni Tribe of the Zuni Reservation, New Mexico, that this notice has been published.
Bureau of Reclamation, Interior.
Notice.
Notice is hereby given of contractual actions that have been proposed to the Bureau of Reclamation (Reclamation) and were pending through December 31, 2009, and contract actions that have been completed or discontinued since the last publication of this notice on November 6, 2009. From the date of this publication, future notices during this calendar year will be limited to new, modified, discontinued, or completed contract actions. This annual notice should be used as a point of reference to identify changes in future notices. This notice is one of a variety of means used to inform the public about proposed contractual actions for capital
The identity of the approving officer and other information pertaining to a specific contract proposal may be obtained by calling or writing the appropriate regional office at the address and telephone number given for each region in the
Michelle Kelly, Water and Environmental Services Division, Bureau of Reclamation, P.O. Box 25007, Denver, Colorado 80225-0007; telephone 303-445-2888.
Consistent with section 9(f) of the Reclamation Project Act of 1939 and the rules and regulations published in 52 FR 11954, April 13, 1987 (43 CFR 426.22), Reclamation will publish notice of proposed or amendatory contract actions for any contract for the delivery of project water for authorized uses in newspapers of general circulation in the affected area at least 60 days prior to contract execution. Announcements may be in the form of news releases, legal notices, official letters, memorandums, or other forms of written material. Meetings, workshops, and/or hearings may also be used, as appropriate, to provide local publicity. The public participation procedures do not apply to proposed contracts for the sale of surplus or interim irrigation water for a term of 1 year or less. Either of the contracting parties may invite the public to observe contract proceedings. All public participation procedures will be coordinated with those involved in complying with the National Environmental Policy Act. Pursuant to the “Final Revised Public Participation Procedures” for water resource-related contract negotiations, published in 47 FR 7763, February 22, 1982, a tabulation is provided of all proposed contractual actions in each of the five Reclamation regions. When contract negotiations are completed, and prior to execution, each proposed contract form must be approved by the Secretary of the Interior, or pursuant to delegated or redelegated authority, the Commissioner of Reclamation or one of the regional directors. In some instances, congressional review and approval of a report, water rate, or other terms and conditions of the contract may be involved.
Public participation in and receipt of comments on contract proposals will be facilitated by adherence to the following procedures:
1. Only persons authorized to act on behalf of the contracting entities may negotiate the terms and conditions of a specific contract proposal.
2. Advance notice of meetings or hearings will be furnished to those parties that have made a timely written request for such notice to the appropriate regional or project office of Reclamation.
3. Written correspondence regarding proposed contracts may be made available to the general public pursuant to the terms and procedures of the Freedom of Information Act, as amended.
4. Written comments on a proposed contract or contract action must be submitted to the appropriate regional officials at the locations and within the time limits set forth in the advance public notices.
5. All written comments received and testimony presented at any public hearings will be reviewed and summarized by the appropriate regional office for use by the contract approving authority.
6. Copies of specific proposed contracts may be obtained from the appropriate regional director or his designated public contact as they become available for review and comment.
7. In the event modifications are made in the form of a proposed contract, the appropriate regional director shall determine whether republication of the notice and/or extension of the comment period is necessary.
Factors considered in making such a determination shall include, but are not limited to (i) the significance of the modification, and (ii) the degree of public interest which has been expressed over the course of the negotiations. At a minimum, the regional director shall furnish revised contracts to all parties who requested the contract in response to the initial public notice.
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The following action has been discontinued since the last publication of this notice on November 6, 2009:
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31. Water user entities responsible for payment of O&M costs for Reclamation projects in Arizona, Colorado, New Mexico, Texas, Utah, and Wyoming: Contracts for extraordinary maintenance and replacement funded pursuant to Subtitle G of Public Law 111-11.
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United States International Trade Commission.
Notice of Commission determinations to conduct full five-year reviews concerning the countervailing duty order on certain hot-rolled flat-rolled carbon-quality steel products (“hot-rolled steel”) from Brazil, the antidumping duty orders on hot-rolled steel from Brazil and Japan, and the suspended investigation on hot-rolled steel from Russia.
The Commission hereby gives notice that it will proceed with full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. 1675(c)(5)) to determine whether revocation of the countervailing duty order on hot-rolled steel from Brazil, the antidumping duty orders on hot-rolled steel from Brazil and Japan, and the suspended investigation on hot-rolled steel from Russia would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the reviews will be established and announced at a later
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
On July 6, 2010, the Commission determined that it should proceed to full reviews in the subject five-year reviews pursuant to section 751(c)(5) of the Act. The Commission found that with respect to each of the subject reviews both the domestic and respondent interested party group responses to its notice of institution (75 FR 16504, April 1, 2010) were adequate. A record of the Commissioners' votes, the Commission's statement on adequacy, and any individual Commissioner's statements will be available from the Office of the Secretary and at the Commission's Web site.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission also determines that an industry producing anhydrous monopotassium phosphate (“MKP”), provided for in subheading 2835.24.00 of the Harmonized Tariff Schedule of the United States, is not materially injured or threatened with material injury, nor that the establishment of an industry is materially retarded, by reason of imports from China, that have been found by Commerce to be sold in the United States at LTFV and subsidized by the Government of China.
On September 24, 2009, a petition was filed with the Commission and Commerce by ICL Performance Products LP, St. Louis, MO, and Prayon, Inc., Augusta, GA, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV and subsidized imports of DKP, MKP, sodium tripolyphosphate (“STPP”), and TKPP from China.
The Commission transmitted its determination in these investigations to the Secretary of Commerce on July 15, 2010. The views of the Commission are contained in USITC Publication 4171 (July 2010), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled “In Re Certain Flat Panel Digital Televisions and Components Thereof”; the Commission is soliciting comments on any public interest issues raised by the complaint.
Marilyn R. Abbott, Secretary to the Commission, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server (
The Commission has received a complaint filed on behalf of Vizio, Inc. on July 16, 2010. 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 flat panel digital televisions and components thereof. The complaint names as respondents LG Electronics, Inc. of Seoul, South Korea and LG Electronics U.S.A., Inc., of Englewood Cliffs, NJ.
The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
(iii) indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
(iv) indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.
Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the
Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2746”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by § 201.8 of the rules (see Handbook for Electronic Filing Procedures,
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).
By order of the Commission.
United States International Trade Commission.
Termination of five-year review.
The subject five-year review was initiated in May 2010 to determine whether revocation of the antidumping duty order on greige polyester/cotton printcloth from China would be likely to lead to continuation or recurrence of material injury. On July 2, 2010, the Department of Commerce published notice that it was revoking the order effective June 27, 2010, “{b}ecause the domestic interested parties did not participate in this sunset review * * * ” (75 FR 38463, July 2, 2010). Accordingly, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)), the subject review is terminated.
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
This review is being terminated under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.69 of the Commission's rules (19 CFR 207.69).
By order of the Commission.
Notice is hereby given that on July 19, 2010, a proposed Consent Decree (the “Decree”) in
In a complaint, filed simultaneously with the Decree, the United States alleges that Vanguard Car Rental USA, LLC, Enterprises Rent-a-Car of Boston, LLC, and Camrac, LLC (collectively “Vanguard”) violated the Clean Air Act, 42 U.S.C. 7401
Pursuant to the Decree, Vanguard will implement a number of compliance measures, including: requiring a supervisor to walk through the facilities twice a day to identify and rectify illegal idling; the implementation of a driver training program that highlights Vanguard's anti-idling policy; the posting of “No Idling” signs at the facilities; and the certification by Vanguard that all its shuttle buses equipped with automatic engine shut-offs are working and set so that the vehicle engine will not idle longer than permitted under the applicable Massachusetts or Connecticut idling standard. Vanguard will also pay a $475,000 civil monetary penalty to the United States pursuant to the Decree.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
During the public comment period, the Decree may also be examined on the following Department of Justice Web site,
Notice is hereby given that on July 7, 2010, a proposed Consent Decree in
In this federal action, the United States sought civil penalties and injunctive relief against Wise Alloys, LLC (“Wise Alloys”), an aluminum scrap recycler, for civil penalties and injunctive relief resulting from violations of Section 112 of the Clean Air Act, 42 U.S.C. 7412, and implementing regulations establishing maximum achievable control technology emission standards for the secondary aluminum industry, 40 CFR 63 Subpart RRR (“the Secondary Aluminum MACT”). Wise Alloys owns and operates an aluminum recycling facility in Muscle Shoals, Alabama which contains two affected sources, the Alabama Reclamation Operations and the Alloys Cast House. The alleged violations include non-compliance with the testing, operational, monitoring, and record keeping requirements of the Secondary Aluminum MACT.
The Alabama Department of Environmental Management (“ADEM”) has filed a complaint in intervention against Wise Alloys, regarding similar claims under Alabama law, and has joined in the settlement set forth in the proposed Consent Decree.
The United States and ADEM have agreed to resolve their respective claims against Wise Alloys under the proposed Consent Decree wherein Wise Alloys has agreed to perform injunctive relief as set forth in the Decree (Section VI. Compliance Requirements). Wise Alloys has also agreed to pay, within thirty days of Consent Decree entry, a civil penalty of $133,5000 to the United States, and $133,500 to ADEM for a total civil penalty payment of $267,000.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at U.S. EPA Region 4, 61 Forsyth Street, SE., Atlanta, GA, 30303, ATTN: Ellen Rouch. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, to
Notice is hereby given that on July 14, 2010, a proposed Settlement Agreement in the bankruptcy matter,
Under the Settlement Agreement, EPA will receive an allowed general unsecured claim with respect to response costs incurred by the EPA with respect to Behr Dayton in the amount of $26,000,000. The EPA will receive an allowed general unsecured claim with respect to civil penalties in the amount of $5,000,000. Accordingly, the total amount of the EPA's allowed general unsecured claim will be $31,000,000. The allowed general unsecured claim with respect to civil penalties, however, shall be subordinated under the plan of confirmation to other allowed general unsecured claims.
Upon the effective date of the settlement agreement, the United States will also receive a cash payment of $500,000, which will be applied to Behr Dayton. In the event that certain funds reserved for funding environmental cleanup at sites owned by the Liquidation Trust are not needed for their intended purpose because such owned property is transferred or sold to a third party purchaser, the United States would receive additional cash payments in the maximum aggregate amount of $1,500,000 million (which, together with the $500,000 in cash that the United States would receive on the effective date of the settlement agreement, would total $2,000,000), which amount(s) will also be applied to Behr Dayton.
The Department of Justice will receive, for a period of thirty days from the date of this publication, comments relating to the Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Settlement Agreement may be examined at the Office of the United States Attorney, 86 Chambers Street, 3rd Floor, New York, New York 10007, and at the U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. During the public comment period, the Settlement Agreement may also be examined on the following Department of Justice Web site,
Legal Services Corporation.
Notice.
The Legal Services Corporation (LSC) is revising the Accounting Guide for LSC Recipients to reflect changes that have occurred since the last publication of the Accounting Guide (the “Guide”) in 1997. Notice was published in the
The revisions incorporate: (1) New internal control provisions for electronic banking transactions and contracting; (2) financial oversight concepts from the Sarbanes Oxley Act of 2002; (3) references to the accounting standards codification by the Financial Standards Accounting Board (FASB) released on July 1, 2009; (4) key practices to enhance fraud prevention; (5) provisions in other LSC regulations and policies, including the LSC Property Acquisition and Management Manual and LSC Program Letters; (6) revisions to accounting procedures and internal controls to reflect current best practices; (7) updated and new references to other sources of information; and (8) other changes to clarify existing provisions. The Accounting Guide for LSC Recipients (2010 edition) can be located by accessing LSC's Web site at
Chuck Greenfield, Program Counsel, Legal Services Corporation, 3333 K St., NW., Washington DC 20007;
Under the Legal Services Corporation Act, as amended, LSC “is authorized to require such reports as it deems necessary from any recipient, contractor or person or entity receiving assistance” 42 U.S.C. 2996g(a). LSC is also “authorized to prescribe the keeping of records with respect to funds provided by grant or contract and shall have access to such records” 42 U.S.C. 2996g(b). Further, LSC “shall conduct or require each recipient, contractor, person or entity receiving financial assistance * * * to provide for an annual financial audit.” 42 U.S.C. 2996h(c)(1). In addition, “funds received by any recipient from a source other than the Corporation * * * shall be accounted for and reported as receipts and disbursements separate and district from Federal funds” 42 U.S.C. 2996i(c).
Under authority of the Legal Services Corporation Act, LSC published the Accounting Guide for LSC Recipients. The Guide sets forth LSC's accounting, financial management and reporting guidelines. In general, LSC requires recipients and subrecipients of its funding to: (1) Manage LSC and non-LSC funds in a stewardship manner and pursuant to the cost standards and procedures of 45 CFR Part 1630; and (2) record transactions in accounting records and prepare annual financial statements in accordance with generally accepted accounting principles (GAAP). The current version of the Guide was last updated in 1997.
In an effort to update the Guide to reflect more current accounting and financial oversight practices, as well as to respond to grantee financial issues mentioned in a Government Accountability Office (GAO) report, and as a result of the recommendations of the LSC Fiscal Advisory Group, LSC developed a number of revisions to the Guide. The revisions are in the following eight categories:
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(2)
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(5)
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(8)
Following the publication of notice of proposed revisions to the Guide in the
Section 1-7 sets forth the duties and responsibilities of financial oversight committees, including the finance and audit committees. The Georgia Legal Services Program raised a concern about the prospect of being required to have separate board finance and audit committees.
The Georgia Legal Services Program also expressed concern over the use of the term “financial statements” in one of the specified roles of the finance committee. The Georgia program mentions that the review of full financial statements monthly would be time-consuming, burdensome for the program, and potentially confusing.
The final comment from the Georgia Legal Services Program is that the provision of financial reports on a quarterly basis, rather than monthly as set forth in the proposed revision, has worked well for their program.
In addition, there were comments from several members of the LSC Board of Directors that this section needs to have more focus on the need for the duties of audit committees to be performed even if a recipient does not have a separate audit committee and on the need of having a financial expert on the financial oversight committee(s) or access to a financial expert. One board member also mentioned that there were too many “or” options in the language.
LSC Board members recommended an expansion of the language in Section 1-7 under role No. 6 of the Audit Committee.
Section 2-2.4 sets forth certain principles for the treatment of property, including the requirement that recipients capitalize and depreciate all nonexpendable property with a cost in excess of $5,000 and a useful life of more than one year. A comment was received from the LSC Office of the Inspector General (OIG) suggesting that it might be necessary to include accounting for sensitive assets even when those assets are valued at less than $5,000, as the program may want to track them for other reasons.
Section 2-2.6 discusses court-awarded attorneys' fees. A comment was received from the Chair of the Standing Committee on Legal Aid and Indigent Defendants of the American Bar Association, suggesting that, given the elimination of the restriction on the claiming, collection and retention of attorneys' fees, it would be helpful if there would be an explanation of what attorneys' fees are permitted.
There was also a comment from the Center on Law and Social Policy recommending a reference in 2-2.6 to the provision on accounting for attorneys' fees, now set forth in 45 CFR 1609.4.
Section 2-3.1 addresses grant and contract costs. A comment received from the LSC OIG questioned whether the Program Letter on Compliance Guidance and Interim Guidance on Attorneys' Fees dated December 17, 2009, was superseded by an interim final rule on attorneys' fees issued by the LSC on March 15, 2010.
The introduction to Chapter 3 discusses the responsibilities of a recipient to maintain adequate accounting records and internal control procedures. An LSC OIG comment recommended the addition of language making clear that internal control is specifically a management responsibility.
Section 3-5 contains the LSC Fundamental Criteria, which is a listing of the elements of an adequate accounting and financial reporting system. A comment from the LSC OIG noted that the discussion on Enterprise Risk Management seemed to be misplaced and not fully developed.
An additional comment from the OIG suggested that a section on contracting should be included in the fundamental criteria.
A further OIG comment stated that while allocation is covered in Section 3-5.9(c) of the Fundamental Criteria, there is no specific mention of
A follow-up comment from the OIG recommended that the OIG be specifically mentioned in the new allocation formula language.
An OIG comment recommended the addition of “a sufficient level of fidelity coverage” in Section 3-5.13 (Bonding.)
An OIG comment suggested adding a provision specifying that documents to support competition should be retained and kept with the contract files in Section 3.5.16 (Contracting.)
Section 3-6 contains a list of key practices that can help prevent fraud. An LSC OIG comment suggested that there should be an addition to No. 19 to address protection against retaliation for board members and volunteers who report suspected fraud.
An LSC OIG comment recommended that board members should be reminded that applicable federal and state laws also apply to them.
A comment from the LSC OIG noted that item No. 23 was the only key practice that did not start with a verb.
A comment made by an LSC Board member recommended that more specific guidance be given to recipients in the event fraud is discovered.
Appendix IA.1 provides a description of illustrative financial statements. A comment from the LSC OIG suggests that the OIG be listed in the first paragraph so that the OIG, as well as LSC, would be able “to make comparison with budgeted amounts as well as accumulate regional or national data for the legal services network.”
Appendix II contains a section on the retention times for nonprofit records. A comment from a nominee to the LSC Board suggested that we add a provision recognizing that state law may provide a longer retention period for certain types of records.
A comment was also received from the LSC OIG recommending that all financial and financial related information be retained for at least five years, given the fact that questioned costs under 45 CFR 1630 can go back five years.
Appendix IV sets forth procedures for accounting for property, including the capitalization and depreciation of property and equipment. We received comments from JAA & Associates, Hawaii, that the proposed revisions to the illustrations of journal entries for capitalization and depreciation are confusing, incomplete or inaccurate. JAA & Associates also suggested changing the title of Illustration 1.1 under Capitalization from “To record equipment purchased with cash” to “To record equipment purchased with cash or credit.”
Appendix VI contains provisions on other regulatory financial requirements, including tax reporting. An LSC OIG comment recommended that the language be altered to reflect that form 990 is required to be filed and the failure to file for three consecutive years will automatically result in the loss of a non profit's tax exempt status.
Appendix VII provides a checklist for a grantee's internal controls. An LSC OIG comment suggests requiring employees and officers handling assets to be “sufficiently bonded” under Appendix VII A (General.), No. 6.
A comment from the LSC OIG questioned whether it was intended in Appendix VII A (General) to have a monthly reporting requirement of a cash flow statement to the finance committee of a recipient's board of directors.
We also received a comment from a nominee to the LSC Board that Appendix VII B (Personnel and Payroll) should mention that it is a best practice to include both a nondiscrimination policy and a signed statement from every employee that they understand their roles in terms of nondiscrimination.
An LSC OIG comment suggested that Appendix VII D (Procurement) contain
Another LSC OIG comment questioned what “properly executed” means in Appendix VII E (Legal Consultants/Contract Services.)
An LSC OIG comment suggested adding to Appendix VII G1 No. 7 that the check should be marked as void or defaced in a manner that would prevent future use of the check.
An LSC OIG comment pointed out that there was no reference in Appendix VII H (Controls Over Cash Receipts) to cash received from an individual while in the office, as opposed to receiving money through the mail.
The LSC OIG also commented that No. 15 should provide that the client is entitled to a receipt for cash provided and that if a receipt is not provided that the client should see a supervisor.
A comment received from the Legal Aid and Defender Association, Detroit, Michigan, questions the segregation of duties guidelines found in Appendix VII, Section J (Segregation of Duties). There is a fear that if duties were assigned to staff outside the accounting department, this staff person may have access to confidential information.
An LSC OIG comment suggested that Appendix VII K (Petty Cash Controls) be changed to add procedures regarding access to and physical control over the petty cash box during and after work hours.
National Archives and Records Administration.
Renewal of Advisory Committee on Presidential Library-Foundation Partnerships.
This notice is published in accordance with the provisions of section 9(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.) and advises of the renewal of the National Archives and Records Administration's (NARA) Advisory Committee on Presidential Library-Foundation Partnerships. In accordance with Office of Management and Budget (OMB) Circular A-135, OMB approved the inclusion of the Advisory Committee on Presidential Library-Foundation Partnerships in NARA's ceiling of discretionary advisory committees.
NARA has determined that the renewal of the Advisory Committee is in the public interest due to the expertise and valuable advice the Committee members provide on issues affecting the functioning of existing Presidential libraries and library programs and the development of future Presidential libraries. NARA will use the Committee's recommendations in its implementation of strategies for the efficient operation of the Presidential libraries.
NARA's Committee Management Officer is Mary Ann Hadyka. She can be reached at 301-837-1782.
The U.S. Nuclear Regulatory Commission (NRC) is considering changes to the Emergency Plan, pursuant to 10 CFR 50.54, “Conditions of licenses,” paragraph (q), for Facility Operating License No. NPF-62, issued to Exelon Generation Company, LLC (the licensee), for operation of the Clinton Power Station, located in Clinton, Illinois. In accordance with 10 CFR 51.21, the NRC prepared an environmental assessment documenting its finding. The NRC concluded that the proposed action will have no significant environmental impact.
The proposed action is NRC approval of a licensee's request to revise the staffing requirements for the Exelon Nuclear Radiological Emergency Plan Annex for Clinton Station, Table B-1, “Minimum Staffing Requirements for the On-Shift Clinton Station Emergency Response Organization (ERO),” to allow an increase in the Non-Licensed Operator (NLO) staffing from two to four, allow in-plant protective actions to be performed by personnel assigned other functions, and replace a Mechanical Maintenance person with a NLO. The regulation at 10 CFR 50.54(q) states that, “The nuclear power reactor licensee may make changes to these plans without Commission approval only if the changes do not decrease the effectiveness of the plans.” The licensee concluded that the proposed action constituted a decrease in the plan's
The proposed action is needed to allow an increase in NLO staffing from two to four, allow in-plant protective actions to be performed by personnel assigned other functions, and replace a Mechanical Maintenance person with a NLO. According to the licensee, increasing the number of NLO staffing improves the response of site personnel whose emergency plan role is to assist with operator and maintenance response to the emergency event and provides an increased number of personnel for repair and corrective actions.
The NRC has completed its environmental assessment of the proposed changes to the Clinton Power Station Emergency Plan. The staff has concluded that the changes would not significantly affect plant safety and would not have a significant adverse effect on the probability of an accident occurring. The proposed action would not result in an increased radiological hazard beyond those previously analyzed in the updated safety analysis report. There will be no change to radioactive effluents that effect radiation exposures to plant workers and members of the public. The proposed action is an administrative change related to plant personnel work assignments. No changes will be made to plant buildings or the site property. Therefore, no changes or different types of radiological impacts are expected as a result of the proposed action.
The proposed action does not result in changes to land use or water use, or result in changes to the quality or quantity of non-radiological effluents. No changes to the National Pollution Discharge Elimination System permit are needed. No effects on the aquatic or terrestrial habitat in the vicinity or the plant, or to threatened, endangered, or protected species under the Endangered Species Act, or impacts to essential fish habitat covered by the Magnuson-Stevens Act are expected. There are no impacts to the air or ambient air quality. There are no impacts to historical and cultural resources. There would be no noticeable effect on socioeconomic conditions in the region. Therefore, no changes or different types of non-radiological environmental impacts are expected as a result of the proposed action. Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
The details of the staff's safety evaluation will be provided as part of the letter to the licensee approving issuance of the license amendment.
As an alternative to the proposed actions, the staff considered denial of the proposed actions (i.e., the “no-action” alternative). Denial of the license amendment request would result in no change in current environmental impacts. The environmental impacts of the proposed license amendment and the “no action” alternative are similar.
The action does not involve the use of any different resources than those considered in the Final Environmental Statement for the Clinton Power Station, Docket No. 50-461, issued in May, 1982.
In accordance with its stated policy, on July 7, 2010, the staff consulted with the Illinois State official, Mr. Frank Niziolek of the Illinois Emergency Management Agency, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated April 2, 2010 (ML100950124). Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 1555 Rockville Pike, Rockville, Maryland 20852. Publicly available records will be accessible electronically from the Agencywide Document Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site:
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission (NRC).
Solicitation of public comment.
The NRC is soliciting public comment on NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants,” on a proposed Revision 1 to Standard Review Plan (SRP), Section 13.5.1.1 on “Administrative Procedures—General,” (Agencywide Documents Access and Management System (ADAMS) Accession No. ML101340264). The Office of New Reactors (NRO) is revising SRP Section 13.5.1.1 (Enclosure 1), which updates the initial issuance of this section, dated March 2007, to reflect the changes as shown in the description of changes (ADAMS Accession No. ML101340272). The previous version of this SRP section was published in March 2007 as initial issuance (ADAMS Accession No. ML070550029).
The NRC staff issues notices to facilitate timely implementation of the current staff guidance and to facilitate activities associated with the review of amendment applications and review of design certification and combined license applications for NRO. The NRC staff intends to incorporate the final approved guidance into the next revision of NUREG-0800, SRP Section 13.5.1.1, Revision 1 and Regulatory Guide 1.206, “Combined License Applications for Nuclear Power Plants (LWR Edition),” June 2007.
Comments must be filed no later than 30 days from the date of publication of this notice in the
You may submit comments by any one of the following methods.
The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.
The NRC ADAMS provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Mr. William F. Burton, Chief, Rulemaking and Guidance Development Branch, Division of New Reactor Licensing, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone at 301-415-6332 or e-mail at
The NRC staff is issuing this notice to solicit public comments on the proposed SRP Section 13.5.1.1, Revision 1. After the NRC staff considers any public comments, it will make a determination regarding the proposed SRP Section 13.5.1.1, Revision 1.
For the Nuclear Regulatory Commission,
Wednesday, August 4, 2010 at 11 a.m.
Commission hearing room, 901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001.
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public. The public session will be podcast.
1. Review of postal-related congressional activity.
2. Report on international activities.
3. Review of active cases.
4. Report on recent activites of the Joint Periodicals Task Force and status of the report to the Congress pursuant to secton 708 of the PAEA.
5. Report on public comments and rate and service inquiries.
6. Report on vacancies and positions recently filled.
7. Discussion of pending litigation.
8. Discussion of confidential personnel issues involving recruitment.
9. Discussion of contracts involving confidential commercial information.
Stephen L. Sharfman, General Counsel, Postal Regulatory Commission, at 202-789-6820 or
Wednesday, August 4, 2010, at 10 a.m.; Thursday, August 5, at 8:30 a.m. and 10:30 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza, SW., in the Benjamin Franklin Room.
Wednesday, August 4 at 10 a.m.—Closed; Thursday, August 5 at 8:30 a.m.—Open; and at 10:30 a.m.—Closed.
1. Strategic Issues.
2. Pricing.
3. Financial Matters.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
1. Approval of Minutes of Previous Meetings.
2. Remarks of the Chairman of the Board.
3. Remarks of the Postmaster General and CEO.
4. Committee Reports.
5. Quarterly Report on Financial Performance.
6. Quarterly Report on Service Performance.
7. Tentative Agenda for the September 21-22, 2010, meeting in Washington, DC.
1. Continuation of Wednesday's closed session agenda.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza, SW., Washington, DC 20260-1000. Telephone (202) 268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes to amend the Rules of the Boston Options Exchange Group, LLC (“BOX”) to permit the listing and trading of options series that expire one week after being opened for trading (“Short Term Option Program” or “STO Program”). The text of the proposed rule change is available from the Exchange's Web site at
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to amend the BOX Rules to establish a Short Term Option Program on the Exchange by proposing to add new Supplementary Material .07 to Chapter IV, Section 6 (Series of Options Open for Trading) and Supplementary Material .02 to Chapter XIV, Section 10 (Terms of Index Options Contracts) in order to list option series that expire one (1) week after being opened for trading. The Exchange also proposes to add the definition of Short Term Option Series to Chapter 1, Section 1(a) and Chapter XIV, Section 2.
The Commission approved the Short Term Option Program on behalf of the Chicago Board Options Exchange (“CBOE”) on a pilot basis in 2005 and for permanent establishment in 2009.
Specifically, the Exchange proposes to establish a Short Term Option Program for non-index options (
Under the STO Program, BOX may select up to five (5) approved option classes on which Short Term Option Series could be opened. BOX also may list Short Term Option Series on any option classes that are selected by other securities exchanges that employ a similar program under their respective rules.
For each class selected for the STO Program, BOX may open up to twenty Short Term Option Series for each expiration date in that class, with approximately the same number of strike prices above and below the value of the underlying security or calculated index value at about the time that the
If BOX opens less than twenty Short Term Option Series for a given expiration date, additional series may be opened for trading on BOX when deemed necessary to maintain an orderly market, to meet customer demand, or when the current value of the underlying security or index moves substantially from the previously listed exercise prices. The total number of series for a given expiration date, however, will not exceed twenty series. Any additional strike prices listed by the Exchange shall be within 30% above or below the current price of the underlying security. BOX may also open additional strike prices of Short Term Option Series that are more than 30% above or below the current price of the underlying security provided that demonstrated customer interest exists for such series, as expressed by institutional, corporate or individual customers or their brokers. Market Makers trading for their own account shall not be considered when determining customer interest under this provision. Moreover, the opening of the new Short Term Option Series shall not affect the series of options of the same class previously opened.
The Short Term Option Program provides that no Short Term Option Series may expire in the same week in which monthly option series on the same class expire or, in the case of Quarterly Options Series, on an expiration that coincides with an expiration of Quarterly Options Series on the same class.
With regard to the impact of this proposal on system capacity, BOX has analyzed its capacity and has represented to the Exchange that it and the Options Price Reporting Authority (“OPRA”) have the necessary systems capacity to handle the potential additional traffic associated with the listing and trading of options pursuant to the Short Term Option Program.
Finally, the Exchange is proposing to make non-substantive changes to conform the language of Chapter IV, Section 6 (Series of Options Open for Trading). Specifically, the Exchange proposes to add language to clarify that Short Term Options Series procedures are similar to Quarterly Options Series procedures and will be treated differently than standard Options Series.
The Exchange believes that the Short Term Option Program will provide investors with a flexible and valuable tool to manage risk exposure, minimize capital outlays, and be more responsive to the timing of events affecting the securities that underlie options contracts. The Exchange also believes that providing the flexibility to list all Short Term Option series (equity and index) on any Thursday or Friday will help implement the program more effectively and avoid investor confusion.
The Commission has requested, and BOX has agreed for the purposes of this filing, to submit one (1) report to the Commission providing an analysis of the BOX Short Term Option Program (the “Report”).
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has requested that the Commission waive the 30-day operative delay. The Commission believes that waiver of the operative delay is consistent with the protection of investors and the public interest because the proposal is substantially similar to that of another exchange that was approved by the Commission.
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 Elizabeth M. Murphy, 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.
On January 22, 2010, the Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“SEC” or “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposed to amend Rules 12602 and 13602 of the Codes to provide that a non-party witness has the right to be represented by an attorney at an arbitration proceeding held in a United States hearing location while the witness is testifying. The attorney would have to be in good standing and admitted to practice before the Supreme Court of the United States or the highest court of any state of the United States, the District of Columbia, or any commonwealth, territory, or possession of the United States, unless state law prohibits such representation. Under the proposal, the panel would have the authority to determine the extent to which the attorney could participate at the hearing.
While the Codes expressly allow a party in an arbitration proceeding to be represented by an attorney at any stage in the proceeding,
Under the current Codes, arbitrators determine whether non-party witnesses can bring an attorney to a hearing. As indicated in the Notice, FINRA does not believe that arbitrators have been denying requests by non-party witnesses, including non-party associated persons,
The Commission received three comments on the proposed rule change.
One commenter supported FINRA's efforts to consider due process protections for non-party witnesses.
Another commenter did not support the proposal and suggested an amending it to limit the role of a non-party witness' attorney.
The third commenter did not support the proposal stating that: (1) The proposal is unnecessary because arbitrators have apparently not been denying requests for representation from non-party witnesses; (2) FINRA's references to “due process” are inappropriate because arbitration proceedings are not designed to be structured as judicial proceedings; (3) the proposal would reduce control by arbitrators, add confusion and protract the process (
FINRA submitted Amendment No. 1 in response to comments.
After carefully considering the proposal, as amended by Amendment No. 1, the comments, and FINRA's Response, the Commission finds that the proposed rule change is consistent with the requirements of the Act, and the rules and regulations thereunder that are applicable to a national securities association.
The Commission believes that FINRA has adequately addressed the concerns raised by the commenters. With respect
Moreover, the Commission believes the concern that the proposal would reduce control by arbitrators, add confusion and protract the process will be mitigated by Amendment No. 1. Under the proposal, as modified by Amendment No. 1, the role of attorneys for non-party witnesses will generally be limited to asserting recognized privileges on behalf of the non-party witness; however, the arbitration panel will maintain overall control over the proceeding, including the ability to determine the appropriate level of attorney representation at a hearing. Further, FINRA has committed to alerting arbitrators to concerns regarding delayed or protracted proceedings.
Finally, the Commission does not agree that FINRA has not adequately justified its basis for the proposal. The Commission believes that FINRA's justification of enhancing fairness in the arbitration process by ensuring that a non-party witness may be represented by counsel during his or her testimony is consistent with the requirements of the Act.
The Commission finds goods cause, pursuant to Section 19(b)(2) of the Act,
Accordingly, the Commission finds that good cause exists to approve the proposal, as modified by Amendment No. 1, on an accelerated basis.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether Amendment No. 1 to 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 Elizabeth M. Murphy, 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”)
The Exchange proposes to (i) expand the delta hedging exemption available for equity options positions limits, (ii) amend the reporting requirements applicable to members relying on the delta hedging exemption and (iii) adopt a delta hedging exemption from certain index options position limits.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed
I. Expansion of Delta-Based Equity Hedge Exemption
On December 14, 2007,
The “options contract equivalent of the net delta” of a hedged equity option position is subject to the position limits under Exchange Rule 1001, subject to the availability of other exemptions.
Many ETF options overlie exchange-traded funds that track the performance of an index. For example, options on Standard & Poor's Depositary Receipts (“SPY”) track the performance of the S&P 500 index. Market participants often hedge SPY options with options on the S&P 500 Index (“SPX options”) or with other financial instruments based on the S&P 500 Index for risk management purposes. The Exchange believes that in order for eligible market participants to more fully benefit from the Exemption as it relates to ETF options, securities and other instruments that are based on the same underlying ETF or the same index on which the ETF is based should also be included in any determination of an ETF option position's net delta or whether the options position is hedged delta neutral.
Accordingly, the Exchange proposes to expand the Exemption by amending Exchange Rule 1001 to permit equity option positions for which the underlying security is an ETF that is based on the same index as an index option to be combined with an index option position for calculation of the delta-based equity hedge exemption. The proposed rule would allow financial products such as securities index options, index futures, and options on index futures to be included along with the ETF in an equity option's net delta calculation. So for example, the proposed rule would allow SPY options to be hedged not only with SPY shares, but with S&P 500 options, S&P 500 futures, options on S&P 500 futures or any other instrument that tracks the performance of or is based on the S&P 500 index. This would be accomplished by including such positions with a related index option position in accordance with the Delta-Based Index Hedge Exemption rule proposed below.
Index options and equity options (
The Exchange proposes to amend the definition of “net delta” at Commentary .09(b)(2) of Exchange Rule 1001 to mean, at any time, the number of shares and/or other units of trade
Exchange Rule 1001 Commentary .09(f) sets forth the reporting requirements applicable to Exchange members who rely on the Exemption. The Exchange proposes to amend Exchange Rule 1001 Commentary .09(f) to exempt from the reporting requirements Exchange market-makers
Index options traded on the Exchange are subject to position and exercise limits, as provided under Exchange Rules 1001A and 1002A.
Index options are often used by market participants such as institutional investors to hedge large portfolios. Exchange rules include hedge exemptions to allow certain positions in index options in excess of the applicable standard position limit if hedged with an Exchange-approved qualified portfolio. Under Rule 1001A Commentary .01, Index Hedge Exemption, a qualified portfolio must be previously established and the options must be carried in an account with an Exchange member. Securities used as a hedge pursuant to this provision may not be used to hedge other option positions.
The Exchange believes that any limit on the ability of market participants to use index options to hedge their portfolios exposes market participants to unnecessary risk on the unhedged portion of their portfolios. The Exchange proposes to adopt a delta-based exemption from index option position and exercise limits that are substantially similar to the delta-based equity hedge exemption under Exchange Rule 1001. A delta-based index hedge exemption would provide market participants the ability to accumulate an unlimited number of index options contracts provided that such contracts are properly delta hedged in accordance with the requirements of the exemption.
Proposed Exemption. The Exchange proposes to adopt an exemption from index options position and exercise limits
The term “delta neutral” is defined in proposed Commentary .04(A) of Exchange Rule 1001A as referring to an index option position that is hedged, in accordance with a permitted pricing model, by a position in one or more correlated instruments for the purpose of offsetting the risk that the value of the option position will change with incremental changes in the value of the underlying index. Correlated instruments would be defined to mean securities and/or other instruments that track the performance of or are based on the same underlying index as the index underlying the option position. These definitions would allow financial products such as ETF options, index futures, options on index futures and ETFs that track the performance of or are based on the same underlying index to be included in an index option's net delta calculation.
Any index option position that is not delta neutral would be subject to position and exercise limits, subject to the availability of other exemptions. Only the “options contract equivalent of the net delta” of such position would be subject to the appropriate position limit.
In addition, members could not use the same positions in correlated instruments in connection with more than one hedge exemption. Therefore, a position in correlated instruments used as part of a delta hedging strategy could not also serve as the basis for any other index hedge exemption.
Permitted Pricing Model. Under the proposed rule, the calculation of the delta for any index option position, and the determination of whether a particular index option position is hedged delta neutral, must be made using a permitted pricing model. A “permitted pricing model” is defined in proposed Exchange Rule 1001A to have the same meaning as defined in Exchange Rule 1001, namely, the pricing model maintained and operated by OCC and the pricing models used by (i) a member or its affiliate subject to consolidated supervision by the SEC pursuant to Appendix E of SEC Rule 15c3-1; (ii) a financial holding company (“FHC”) or a company treated as an FHC under the Bank Holding Company Act of 1956, or its affiliate subject to consolidated holding company group supervision;
Aggregation of Accounts. Members and non-member affiliates relying on the Index Exemption would be required to ensure that the permitted pricing model is applied to all positions in correlated instruments hedging the relevant option position that are owned or controlled by the member, or its affiliates.
However, the net delta of an index option position held by an entity entitled to rely on the Index Exemption, or by a separate and distinct trading unit of such entity, may be calculated without regard to positions in correlated instruments held by an affiliated entity or by another trading unit within the same entity, provided that: (i) The entity demonstrates to the Exchange's satisfaction that no control relationship,
The Exchange previously issued a Memorandum to the membership which discussed, among other things, control relationships.
Obligations of Members and Affiliates. Any member relying on the Index Exemption would be required to provide a written certification to the Exchange that it is using a permitted pricing model as defined in the rule for purposes of the Index Exemption.
The index option positions of a non-member affiliate relying on the Index Exemption must be carried by a member with which it is affiliated.
Reporting. Under proposed Exchange Rule 1001A each member (other than an Exchange market-maker using the OCC Model) relying on the Index Exemption would be required to report, in accordance with Exchange Rule 1003:
Records. Under proposed Commentary .04(G), Exchange Rule 1001A each member relying on the Index Exemption would be required to (i) retain, and would be required to undertake reasonable efforts to ensure that any non-member affiliate of the member relying on the Index Exemption retains, a list of the options, securities and other instruments underlying each options position net delta calculation reported to the Exchange hereunder, and (ii) produce such information to the Exchange upon request.
Reliance on Federal Oversight. As provided under proposed Exchange Rule Commentary .04(C), Exchange Rule 1001A a permitted pricing model includes proprietary pricing models used by members and affiliates that have been approved by the SEC, the Fed or another Federal financial regulator. In adopting the proposed Index Exemption the Exchange would be relying upon the rigorous approval processes and ongoing oversight of a Federal financial regulator. The Exchange notes that it would not be under any obligation to verify whether a member's or its affiliate's use of a proprietary pricing model is appropriate or yielding accurate results.
The Exchange also proposes to amend Option Floor Procedure Advice (“OFPA”) F-15, Minor Infractions of Position/Exercise Limits and Hedge Exemptions, to clarify the application of Exchange Rule 1001A, Position Limits, and Exchange Rule 1002A, Exercise Limits to OFPA F-15.
The Exchange will issue a regulatory circular upon publication of the notice of this filing regarding the proposal herein.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that allowing correlated instruments to be included in the calculation of an equity option's net delta would enable eligible market participants to more fully realize the benefit of the delta based equity hedge exemption. The proposed delta-based index hedge exemption would be substantially similar to the delta-based equity hedge exemption under Exchange Rule 1001. Also, the Commission has previously stated its support for recognizing options positions hedged on a delta neutral basis as properly exempted from position limits.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of such proposed rule change the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, 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”),
The ISE is proposing to amend its Schedule of Fees. The text of the proposed rule change is available on the Exchange's Web site (
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has
The purpose of this proposed rule change is to amend the Exchange's Schedule of Fees. The Exchange currently has a fee cap for large-size foreign currency (“FX”) options orders. This fee discount applies for orders of 5,000 contracts or more and waives fees on incremental volume above 5,000 contracts. Contracts at or under the threshold are charged the constituent's prescribed execution fee. This waiver applies to customer
Additionally, the Exchange proposes to make one change to the current fee discount, namely to lower the threshold from 5,000 contracts to 250 contracts. When ISE initially adopted this fee discount, the Exchange believed that the 5,000 contract threshold was adequate. The Exchange's experience, however, shows that only a limited number of trades have been executed at this level. The Exchange believes lowering the threshold will provide a greater opportunity for members to avail themselves of the fee discount.
The basis under the Securities Exchange Act of 1934 (the “Exchange Act”) for this proposed rule change is the requirement under Section 6(b)(4) that an exchange have an equitable allocation of reasonable dues, fees and other charges among its members and other persons using its facilities. In particular, this proposed rule change would extend a current fee discount, thus effectively maintaining low fees.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to section 19(b)(3) 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE is proposing to amend the qualification standards for market makers to receive a rebate under the Exchange's maker/taker pricing program. The text of the proposed rule change is available on the Exchange's Web site (
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to amend the qualification standards for market makers to receive a rebate under the Exchange's maker/taker pricing program. The Exchange recently adopted transaction fees and rebates for adding and removing liquidity (“maker/taker fees”).
In order to promote and encourage liquidity in options classes that are subject to maker/taker fees, the Exchange currently offers a $0.10 per contract rebate for Market Maker Plus orders sent to the Exchange.
The Exchange now proposes to amend the qualification standards in order for a market maker to qualify for the $0.10 per contract rebate. Specifically, the Exchange proposes to define a Market Maker Plus as a market maker who is on the National Best Bid or National Best Offer 80% of the time for series trading between $0.03 and $5.00 (for options whose underlying stock's previous trading day's last sale price was less than or equal to $100) and between $0.10 and $5.00 (for options whose underlying stock's previous trading day's last sale price was greater than $100) in premium in each of the front two expiration months and 80% of the time for series trading between $0.03 and $5.00 (for options whose underlying stock's previous trading day's last sale price was less than or equal to $100) and between $0.10 and $5.00 (for options whose underlying stock's previous trading day's last sale price was greater than $100) in premium across all expiration months for that symbol during the current trading month.
The Exchange currently determines whether a market maker qualifies as a Market Maker Plus at the end of each month by looking back at each market maker's quoting statistics during that month. If at the end of the month, a market maker meets the Exchange's current stated criteria, the Exchange rebates $0.10 per contract for transactions executed by that market maker during that month. The Exchange will continue to monitor each market maker's quoting statistics to determine whether a market maker qualifies for a rebate under the standards proposed herein.
The Exchange also currently provides market makers a report on a daily basis with quoting statistics so that market makers can determine whether or not they are meeting the Exchange's current stated criteria. Again, the Exchange will continue to provide market makers a daily report so that market makers can determine whether or not they are meeting the Exchange's new quoting requirement to qualify for a rebate.
The Exchange believes the proposed rule change will encourage market makers to post tighter markets in the options classes that are subject to maker/taker fees and thereby increase liquidity and attract order flow to the Exchange.
The Exchange has designated this proposal to be operative on July 1, 2010.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(4) that an exchange have an equitable allocation of reasonable dues, fees and other charges among its members and other persons using its facilities. The impact of the proposal upon the net fees paid by a particular market participant will depend on a number of variables, most important of which will be its propensity to add or remove liquidity in the options classes that are subject to the Exchange's maker/taker fees. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. The Exchange believes that
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Station Place, 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”),
The Exchange, pursuant to Section 19(b)(1) of the Act
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to adopt new registration provisions applicable to member organizations that are registered with the Exchange for the purpose of trading NMS Stocks through the facilities of the Exchange. Thus, these new provisions would cover members that trade on the Exchange's proposed new equity trading platform for NMS Stocks, NASDAQ OMX PSX (“PSX”).
New Rule 604(h) will govern the registration of representatives
The rule also provides that a member organization shall not maintain a representative registration with the Exchange for any person (1) who is no longer active in the member organization's investment banking or securities business, (2) who is no longer functioning as a representative, or (3) where the sole purpose is to avoid the examination requirement. A member organization shall not make application for the registration of any person as representative where there is no intent to employ such person in the member organization's investment banking or securities business. A member may, however, maintain or make application for the registration as a representative of a person who performs legal, compliance, internal audit, back-office operations, or similar responsibilities for the member organization, or a person who performs administrative support functions for registered personnel, or a person engaged in the investment banking or securities business of a foreign securities affiliate or subsidiary of the member organization. This provision is intended to ensure that firms register only those persons to whom the requirement is pertinent.
Pursuant to new paragraph (h)(2) of Rule 604, any person whose registration has been revoked by the Exchange as a disciplinary sanction or whose most recent registration as a Representative or Principal has been terminated for a period of two or more years immediately preceding the date of receipt by the Exchange of a new application shall be required to pass the Series 7 examination. This provision is intended to ensure that, in these situations, persons are subject to retesting to assure proper qualification.
Furthermore, new Rule 604(h)(3), Qualification Requirements, states that no member organization shall permit any member or person associated with it
New Supplementary Material .04 to Rule 604 contains the basic requirement
This provision is intended to capture traditional securities personnel in a rule similar to that of several other SROs.
In summary, new Rule 604(g)
Specifically, Rule 604(g)(1) provides that all persons engaged or to be engaged in the investment banking or securities business of a member organization who are to function as Principals shall be registered as such with the Exchange through WebCRD in the category of registration appropriate to the function to be performed as specified in new Supplementary Material .01-.03 of Rule 604. Before their registration can become effective, they shall pass a Qualification Examination for Principals appropriate to the category of registration as specified by the Board, which is further explained below, in proposed Supplementary Material .01-.03 to Rule 604.
Rule 604(g)(1) further provides that a member organization shall not maintain a Principal registration with the Exchange for any person (1) who is no longer active in the member organization's investment banking or securities business, (2) who is no longer functioning as a Principal, or (3) where the sole purpose is to avoid the examination requirement of this rule. A member organization shall not make application for the registration of any person as Principal where there is no intent to employ such person in the member organization's investment banking or securities business. A member organization may, however, maintain or make application for the registration as a Principal of a person who performs legal, compliance, internal audit, back-office operations, or similar responsibilities for the member organization or a person engaged in the investment banking or securities business of a foreign securities affiliate or subsidiary of the member organization. Similar to a provision in proposed Rule 604(h)(1) above applicable to registered representatives, this provision is intended to ensure that firms register only those persons to whom the requirement is pertinent.
New Rule 604(g)(2) states that persons associated with a member organization who are actively engaged in the management of the member organization's investment banking or securities business, including supervision, solicitation, conduct of business or the training of persons associated with a member organization for any of these functions are designated as Principals. Such persons shall include: Sole proprietors, officers, partners, managers of offices of supervisory jurisdiction,
New Rule 604(g)(3), Requirements for Examination on Lapse of Registration, states that any person whose registration has been revoked by the Exchange as a disciplinary sanction or whose most recent registration as a Principal has been terminated for a period of two or more years immediately preceding the date of receipt by the Exchange of a new application shall be required to pass a Qualification Examination for Principals appropriate to such person's category of registration. This is similar to the provision applicable to registered representatives and is intended to ensure that persons' qualifications are properly tested.
Pursuant to new Rule 604(g)(4), Application for Principal Status, any person associated with a member organization as a Registered Representative whose duties are changed by the member organization so as to require registration in any Principal classification shall be allowed a period of 90 calendar days following the change in his or her duties during which to pass the appropriate Qualification Examination for Principals. Upon elevation, the member organization shall submit to the Exchange an amended “Uniform Application for Securities Industry Registration or Transfer” and any applicable fees. In no event may a person function as a Principal beyond the initial 90 calendar day period following the change in his or her duties without having successfully passed the appropriate Qualification Examination. This provision shall apply to a person: (i) Associated with a member organization of another registered national securities exchange or association who is required to register in a Principal classification under Exchange Rules but who is not required to be so registered under the rules of the other exchange or association; and (ii) associated with a member organization who was not required to register with the Exchange as a Principal prior to the adoption of this Rule 604(g) by the Exchange. This provision is intended to be a catch-all to cover persons who become subject to Principal registration rules for different reasons, whether a job change or a change in exchange rules.
Further, any person not presently associated with a member organization as a Registered Representative seeking registration as a Principal shall submit the appropriate application for registration and any required registration and examination fees, pursuant to new Rule 604(g)(4)(B). Such person shall be allowed a period of 90 days after all applicable prerequisites
New Rule 604(g)(5) contains a requirement of at least two Registered Principals.
The term “proprietary trading firm” means a member organization or applicant with the following characteristics: (A) The applicant is not required by Section 15(b)(8) of the Exchange Act to become a FINRA member but is a member of another registered securities exchange not registered solely under Section 6(g) of the Exchange Act; (B) all funds used or proposed to be used by the applicant for trading are the applicant's own capital, traded through the applicant's own accounts; (C) the applicant does not, and will not have customers; and (D) all Principals and Representatives of the applicant acting or to be acting in the capacity of a trader must be owners of, employees of, or contractors to the applicant.
The rule also provides that the Exchange may waive the two Principal requirement in situations that indicate conclusively that only one person should be required to register as a Principal. This provision is identical to that of several other exchanges, and the Exchange believes that such waiver is appropriate in certain situations, but should be carefully applied; for example, the Exchange may determine to apply this provision to a very small firm, with only a few employees in one location.
In addition, the Exchange proposes to adopt a requirement that certain member organizations register a Limited Principal—Financial and Operations, or FINOP, as described below. Specifically, pursuant to new Rule 604(g)(5)(C), an applicant for membership shall have at least one person qualified for registration as a FINOP, which is described in detail below.
To help determine how specifically a person should register as a Principal, the Exchange is proposing to adopt Supplementary Material .01-.03 to Rule 604 to enumerate the three categories of Principal registration. First, Rule 604.01 provides that each member or person associated with a member organization to which Rule 604(g) applies and who is included within the definition of Principal in Rule 604(g), and each person designated as a Chief Compliance Officer on Schedule A of Form BD of a member organization to which Rule 604(g) applies shall be required to register with the Exchange as a General Securities Principal and shall pass the Series 24 examination before such registration may become effective unless such person's activities are so limited as to qualify such person for one or more of the limited categories of Principal registration specified hereafter.
Each person seeking to register and qualify as a General Securities Principal must, prior to or concurrent with such registration, become registered either as a General Securities Representative or as a Limited Representative—Corporate Securities. A person who has been designated as a Chief Compliance Officer on Schedule A of Form BD for at least two years immediately prior to January 1, 2002, and who has not been subject within the last ten years to any statutory disqualification as defined in Section 3(a)(39) of the Act; a suspension; or the imposition of a fine of $5,000 or more for violation of any provision of any securities law or regulation, or any agreement with or rule or standard of conduct of any securities governmental agency, securities self-regulatory organization, or as imposed by any such regulatory or self-regulatory organization in connection with a disciplinary proceeding, shall be required to register as a General Securities Principal, but shall be exempt from the requirement to pass the Series 24 examination.
Secondly, in addition to the basic Principal requirement, the Exchange also proposes to adopt as new Rule 604.02 a requirement that each member organization of the Exchange that is subject to Rule 604(g) and that is operating pursuant to the provisions of SEC Rule 15c3-1(a)(1)(ii), (a)(2)(i) or (a)(8), designate as Limited Principal—Financial and Operations (“FINOP”) those persons associated with it, at least one of whom shall be its chief financial officer, who perform the following duties: Final approval and responsibility for the accuracy of financial reports submitted to any duly established securities industry regulatory body; final preparation of such reports; supervision of individuals who assist in the preparation of such reports; supervision of and responsibility for individuals who are involved in the actual maintenance of the member organization's books and records from which such reports are derived; supervision and/or performance of the member organization's responsibilities under all financial responsibility rules promulgated pursuant to the provisions of the Act; overall supervision of and responsibility for the individuals who are involved in the administration and maintenance of the member organization's back office operations; or any other matter involving the financial and operational management of the member organization. Each FINOP must register with the Exchange and pass the Series 27 examination. This provision is intended to ensure that persons handling the financial affairs of a firm are properly registered and qualified.
Third, the Exchange also proposes to adopt a limited Principal requirement in new Rule 604.03, Limited Principal—General Securities Sales Supervisor, to provide that each person associated with a member organization who is included in the definition of Principal in Rule 604(g) may register with the Exchange as a Limited Principal—General Securities Sales Supervisor, or “SU,” if: (A) His or her supervisory responsibilities in the investment banking and securities business are limited to the securities sales activities of a member organization, including the training of sales and sales supervisory personnel and the maintenance of records of original entry and/or ledger accounts of the member organization required to be maintained in branch offices by SEC recordkeeping rules; (B) he or she is registered pursuant to Exchange Rules as a General Securities Representative; and (C) he or she is qualified to be so registered by passing an appropriate examination, which is the Series 9 or 10. Nevertheless, Rule 604.03(b) provides that a person registered in this category solely on the basis of having passed the Series 9 or 10 examination shall
In order to make clear how this category of limited Principal registration operates, the Exchange proposes to adopt an explanation in subparagraph (c) to Supplementary Material .03 to state that the Limited Principal—General Securities Sales Supervisor is an alternate category of registration designed to lessen the qualification burdens on principals of general securities firms who supervise sales. Without this category of limited registration, such principals could be required to separately qualify pursuant to the rules of multiple exchanges. While persons may continue to separately qualify with all relevant SROs, the Limited Principal—General Securities Sales Supervisor Examination permits qualification as a supervisor of sales of all securities by one examination. Persons registered as Limited Principals—General Securities Sales Supervisor may also qualify in any other category of principal registration. Persons who are already qualified in one or more categories of principal registration may supervise sales activities of all securities by also qualifying as Limited Principals—General Securities Sales Supervisor.
The explanation in subparagraph (c) further spells out the functions that may be performed by Limited Principals—General Securities Sales Supervisors, as well as the functions that may not,
In total, these principal registration requirements are new to the Exchange, although various other supervisory rules currently operate, such as Phlx Rule 748. The Exchange believes that the proposed new principal registration requirement, particularly the General Securities Principal category, should strengthen the framework of supervisory rules that will apply to Exchange member organizations doing business on PSX.
The Exchange proposes to adopt new Rule 604(i), Persons Exempt from Registration, to state that the following persons associated with a member organization are not required to be registered with the Exchange: (1) Persons associated with a member organization whose functions are solely and exclusively clerical or ministerial; (2) persons associated with a member organization who are not actively engaged in the investment banking or securities business; (3) persons associated with a member organization whose functions are related solely and exclusively to the member organization's need for nominal corporate officers or for capital participation; and (4) persons associated with a member organization whose functions are related solely and exclusively to: (A) Effecting transactions on the floor of another national securities exchange and who are registered as floor members with such exchange; (B) transactions in municipal securities; (C) transactions in commodities; (D) transactions in security futures, provided that any such person is registered with FINRA or a registered futures association; (E) transactions in variable contracts and insurance premium funding programs and other contracts issued by an insurance company; (F) transactions in direct participation programs; (G) transactions in government securities; or (H) effecting sales as part of a primary offering of securities not involving a public offering pursuant to Section 3(b), 4(2), or 4(6) of the Securities Act of 1933 and the rules and regulations thereunder. These registration exemptions are intended to make clear that registration of certain, specific persons is not necessary and is based on exemptions contained in, for example, NASDAQ Rule 1060 and NASDAQ OMX BX Rule 1060. Furthermore, the persons described in (E) through (H) immediately above
Rule 604(i)(2) provides that member organizations, and persons associated with a member organization, may pay to nonregistered foreign persons transaction-related compensation based upon the business of customers they direct to member organizations under certain conditions detailed in the rule. This provision is intended to cover the payment of fees to finders.
Rule 604(j) provides that the Exchange may, in exceptional cases and where good cause is shown, waive the applicable Qualification Examination and accept other standards as evidence of an applicant's qualifications for registration. Advanced age or physical infirmity will not individually of themselves constitute sufficient grounds to waive a Qualification Examination. Experience in fields ancillary to the investment banking or securities business may constitute sufficient grounds to waive a Qualification Examination. The rule is based on corresponding rules of FINRA, NASDAQ and NASDAQ OMX BX.
Lastly, the Exchange proposes to amend Rule 640, Continuing Education For Registered Persons, to delete
The Exchange believes that these proposed new rules should form a solid framework for registration with respect to PSX.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Within 35 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE is proposing to amend its Schedule of Fees in order to increase the number of options classes to be included in the Exchange's current schedule of transaction fees and rebates for adding and removing liquidity. The text of the proposed rule change is available on the Exchange's Web site (
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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to increase liquidity and attract order flow by amending its transaction fees and rebates for adding and removing liquidity (“maker/taker fees”).
The Exchange currently assesses a per contract transaction charge to market participants that remove, or “take,” liquidity from the Exchange in the following 50 options classes: PowerShares QQQ trust (“QQQQ”), Bank of America Corporation (“BAC”), Citigroup, Inc. (“C”), Standard and Poor's Depositary Receipts/SPDRs (“SPY”), iShares Russell 2000 (“IWM”), Financial Select Sector SPDR (“XLF”), Apple, Inc. (“AAPL”), General Electric Company (“GE”), JPMorgan Chase & Co. (“JPM”), Intel Corporation (“INTC”), Goldman Sachs Group, Inc. (“GS”), Research in Motion Limited (“RIMM”), AT&T, Inc. (“T”), Verizon Communications, Inc. (“VZ”), United States Natural Gas Fund (“UNG”), Freeport-McMoRan Copper & Gold, Inc. (“FCX”), Cisco Systems, Inc. (“CSCO”), Diamonds Trust, Series 1 (“DIA”), Amazon.com, Inc. (“AMZN”), United States Steel Corporation (“X”), Alcoa Inc. (“AA”), American International Group, Inc. (“AIG”), American Express Company (“AXP”), Best Buy Company (“BBY”), Caterpillar, Inc. (“CAT”), Chesapeake Energy Corporation (“CHK”), Dendreon Corporation (“DNDN”), iShares MSCI Emerging Markets Index Fund (“EEM”), iShares MSCI EAFE Index Fund (“EFA”), iShares MSCI Brazil Index Fund (“EWZ”), Ford Motor Company (“F”), Direxion Shares Financial Bull (“FAS”), Direxion Shares Financial Bear (“FAZ”), First Solar, Inc. (“FSLR”), Market Vectors ETF Gold Miners (“GDX”), SPDR Gold Trust (“GLD”), iShares DJ US Real Estate Index Fund (“IYR”), MGM Mirage (“MGM”), Morgan Stanley (“MS”), Microsoft Corporation (“MSFT”), Micron Technology, Inc. (“MU”), Palm, Inc. (“PALM”), Petroleo Brasileiro S.A. (“PBR”), The Procter & Gamble Company (“PG”), Potash Corporation of Saskatchewan (“POT”), Transocean Ltd. (“RIG”), ProShares UltraShort S&P 500 (“SDS”), iShares Silver Trust (“SLV”), Energy Select Sector SPDR Fund (“XLE”), and Exxon Mobil Corporation (“XOM”) (the “Select Symbols”). The per contract transaction charge depends on the category of market participant submitting an order or quote to the Exchange that removes liquidity.
The Exchange also currently assesses transaction charges for adding liquidity in options on the Select Symbols. Priority Customer orders, regardless of size, and Market Maker Plus orders are not assessed a fee for adding liquidity.
In order to promote and encourage liquidity in options classes that are subject to maker/taker fees, the Exchange currently offers a $0.10 per contract rebate for Market Maker Plus orders sent to the Exchange.
The Exchange proposes to add the following 30 options classes to be included in the Exchange's maker/taker fee schedule: Barrick Gold Corporation (“ABX”), Bristol-Myers Squibb Company (“BMY”), BP p.l.c. (“BP”), ConocoPhillips (“COP”), Dell Computer Corporation (“DELL”), Dryships Inc. (“DRYS”), iShares Trust FTSE/Xinhua China 25 Index Fund (“FXI”), Halliburton Company (“HAL”), International Business Machines Corporation (“IBM”), The Coca-Cola Company (“KO”), Las Vegas Sands Corp. (“LVS”), McDonald's Corporation (“MCD”), Altria Group Inc. (“MO”), Monsanto Company (“MON”), Nokia Oyj (“NOK”), Oracle Corporation (“ORCL”), Pfizer Inc. (“PFE”), QUALCOMM Inc (“QCOM”), Sprint Corporation (“S”), Schlumberger Limited (“SLB”), Semiconductor HOLDRs Trust (“SMH”), SanDisk Corporation (“SNDK”), Proshares Ultrashort Lehman (“TBT”), United States Oil Fund (“USO”), Visa Inc (“V”), Companhia Vale Do Rio Doce (“VALE”), Weatherford International Inc. (“WFT”), Industrial Select Sector SPDR (“XLI”), SPDR S&P Retail ETF (“XRT”), and Yahoo! Inc. (“YHOO”) (the “Additional Select Symbols”).
• Fees for orders executed in the Exchange's Facilitation, Solicited Order, Price Improvement and Block Order Mechanisms are for contracts that are part of the originating or contra order.
• Complex orders executed in the Facilitation and Solicited Order Mechanisms are charged fees only for the leg of the trade consisting of the most contracts.
• Payment for Order Flow fees will not be collected on transactions in options overlying the Select Symbols and the Additional Select Symbols.
• The Cancellation Fee will continue to apply to options overlying the Select Symbols and the Additional Select Symbols.
• The Exchange has a $0.20 per contract fee credit for members who, pursuant to Supplementary Material .02 to Rule 803, execute a transaction in the Exchange's flash auction as a response to orders from persons who are not broker/dealers and who are not Priority Customers.
• The Exchange has a $0.20 per contract fee for market maker orders sent to the Exchange by EAMs.
The Exchange has designated this proposal to be operative on July 1, 2010.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(4) that an exchange have an equitable allocation of reasonable dues, fees and other charges among its members and other persons using its facilities. The impact of the proposal upon the net fees paid by a particular market participant will depend on a number of variables, most important of which will be its propensity to add or remove liquidity in options overlying the Select Symbols and the Additional Select Symbols. The Exchange operates in a highly competitive market in which market participants can readily direct order flow to another exchange if they deem fee levels at a particular exchange to be excessive. The Exchange believes that the proposed fees it charges for options overlying the Select Symbols and the Additional Select Symbols remain competitive with fees charged by other exchanges and therefore continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than to a competing exchange.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, Station Place, 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”)
The ISE is proposing to extend an incentive plan for market makers in four foreign currency options (“FX Options”). The text of the proposed rule change is available on ISE's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to extend an incentive plan for market makers in options on the New Zealand dollar (“NZD”), the Mexican peso (“PZO”), the Swedish krona (“SKA”) and the Brazilian real (“BRB”).
In order to promote trading in these FX Options, the Exchange has an incentive plan pursuant to which the Exchange waives the transaction fees for the Early Adopter
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3) 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 Elizabeth M. Murphy, 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.
The Advisory Committee on International Economic Policy (ACIEP) will meet from 2 p.m. to 4 p.m. on Thursday, August 12, 2010, at the U.S. Department of State, 2201 C Street, NW., Room 1107, Washington, DC. The meeting will be hosted by the Assistant Secretary of State for Economic, Energy, and Business Affairs Jose W. Fernandez and Committee Chair Ted Kassinger. The ACIEP serves the U.S. Government in a solely advisory capacity, and provides advice concerning issues and challenges in international economic policy. The meeting will focus on a discussion about the role of new agricultural technologies in addressing global challenges. Subcommittee reports and discussions will be led by the Economic Sanctions Subcommittee and the Investment Subcommittee.
This meeting is open to public participation, though seating is limited. Entry to the building is controlled; to obtain pre-clearance for entry, members of the public planning to attend should provide, by Monday, August 9, their name, professional affiliation, valid government-issued ID number (
One of the following forms of valid photo identification will be required for admission to the State Department building: U.S. driver's license, U.S. Government identification card, or any valid passport. Enter the Department of State from the C Street lobby. In view of escorting requirements, non-Government attendees should plan to arrive 15 minutes before the meeting begins. Requests for reasonable accommodation should be made to Sherry Booth prior to Wednesday, August 4th. Requests made after that date will be considered, but might not be possible to fulfill.
Personal data is requested pursuant to Pub. L. 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS-D) database. Please see the Privacy Impact Assessment for VACS-D at
For additional information, contact Outreach Coordinator Tiffany Enoch, Office of Economic Policy Analysis and Public Diplomacy, Bureau of Economic, Energy and Business Affairs, at (202) 647-2231 or
Boston & Maine Corporation (B&M) filed a verified notice of exemption under 49 CFR pt. 1152 subpart F-
B&M has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on August 21, 2010, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to B&M's representative: Robert B. Burns, Esq., Boston & Maine Corporation, Iron Horse Park, North Billerica, MA 01862.
If the verified notice contains false or misleading information, the exemption is void
B&M has filed a combined environmental and historic report which addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by July 27, 2010. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), B&M shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by B&M's filing of a notice of consummation by July 22, 2011, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board.
Central Railroad Company of Indianapolis (CERA) filed a verified notice of exemption under 49 CFR part 1152 subpart F—
CERA has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) any overhead traffic on the line can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on August 21, 2010, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to CERA's representative: Melanie B. Yasbin, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void
CERA has filed a combined environmental and historic report which addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by July 27, 2010. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CERA shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by CERA's filing of a notice of consummation by July 22, 2011, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Fulton County, LLC (FC), filed a verified notice of exemption under 49 CFR 1152 subpart F—
FC has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic to be rerouted; (3) no formal complaint filed by a user of rail service on the line (or by a State or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on August 21, 2010, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to FC's representative: Thomas F. McFarland, 208 South LaSalle Street, Suite 1890, Chicago, IL 60604-1112.
If the verified notice contains false or misleading information, the exemption is void
FC has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), FC shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by FC's filing of a notice of consummation by July 22, 2011, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board.
Federal Highway Administration (FHWA), DOT.
Notice of request for extension of currently approved information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for renewal of an existing information collection that is summarized below under
Please submit comments by September 20, 2010.
You may submit comments identified by DOT Docket ID Number 2010-0087 by any of the following methods:
David Jones, 202-366-5053, Federal Highway Administration, Department of Transportation, Office of Highway Policy Information, 1200 New Jersey Avenue, SE., Washington, DC 20590, Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of request for extension of currently approved information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for renewal of an existing information collection that is summarized below under
Please submit comments by September 20, 2010.
You may submit comments identified by DOT Docket ID Number 2010-0088 by any of the following methods:
Michael Koontz, 202-366-2076, Office of Natural and Human Environment, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of request for extension of currently approved information collection.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for renewal of an existing information collection that is summarized below under
Please submit comments by September 20, 2010.
You may submit comments identified by DOT Docket ID Number 2010-0089 by any of the following methods:
Mr. Anthony DeSimone, (317) 226-5307, Office of Program Administration, Federal Highway Administration, Department of Transportation, 575 North Pennsylvania Street, Room 254, Indianapolis, Indiana, 46204, Monday through Friday, except Federal holidays.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Research & Innovative Technology Administration (RITA), Bureau of Transportation Statistics (BTS), DOT.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Written comments should be submitted by August 23, 2010.
Ms. Demetra V. Collia, E-34, Room 302, Bureau of Transportation Statistics, Research and Innovative Technology Administration, 1200 New Jersey Ave., SE., Washington, DC 20590; (202) 366-1610; Fax (202) 366-3676; e-mail
While C
Employees of three railroad sites (pilot sites) will be asked to fill out a questionnaire which will be made available to them at their workplace and mail back to BTS. Data will be collected from the entire population of affected workers (estimated number of participating employees: 3,600 or less). The survey will ask respondents to provide information on: (a) Beliefs about rail safety; (b) issues and personal concerns related to implementation of safety programs in their work environment; (c) knowledge and views
The agency seeks public comments on its proposed information collection. Comments should address whether the information will have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and 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. Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street, NW., Washington, DC 20503, Attention: RITA/BTS Desk Officer.
Federal Aviation Administration (FAA), DOT
Notice of cancellation of: (1) Loran-C navigation system Technical Standard Orders (TSO); and (2) the revocation of Loran-C navigation system TSO Authorizations (TSOA), and request for public comment.
This notice announces the cancellation of Technical Standard Order (TSO) C-60, Airborne Area Navigation Equipment Using Loran-C inputs and all subsequent revisions. The effect of the cancelled TSOs will result in the revocation of all TSOAs issued for the production of those navigational systems. These actions are necessary because the Loran-C Navigation System ceased operation on February 8, 2010.
Comments must be received on or before August 23, 2010
Mr. Kevin Bridges, AIR-130, Federal Aviation Administration, 470 L'Enfant Plaza, Suite 4102, Washington, DC 20024. Telephone (202) 385-4627, fax (202) 385-4651, e-mail to:
You are invited to comment on the cancellation of the TSO and the revocation of the associated TSOAs by submitting written data, views, or arguments to the above address. Comments received may be examined, both before and after the closing date, at the above address, weekdays except federal holidays, between 8:30 a.m. and 4:30 p.m. The Director, Aircraft Certification Service, will consider all comments received on or before the closing date.
The Loran-C navigation system ceased transmitting usable signals on February 8, 2010. Because the Loran-C system ceased operation, the FAA intends to cancel all Loran-C Technical Standard Orders and revoke all associated Technical Standard Order Authorizations (TSOA).
The FAA database contains one (1) specific TSO requiring the Loran-C system as a means of navigation, and numerous TSOAs issued for the design and manufacture of Loran-C avionics equipment. This announcement serves as notice to all Loran-C TSOA holders that the FAA intends to cancel all TSOs (including active historical TSOs) and revoke all TSOAs for Loran-C avionics equipment.
Federal Aviation Administration (FAA), DOT.
Notice of Availability of a Final Environmental Assessment (Final EA) and Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for the Proposed ORD Airport Surveillance Radar, Model 9, West Chicago, Illinois.
The Federal Aviation Administration (FAA) is issuing this notice to advise the public that the FAA has prepared, and approved on May 4, 2010, a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) based on the Final Environmental Assessment (Final EA) for the Proposed ORD Airport Surveillance Radar, Model 9 (ASR-9), in West Chicago, Illinois. The FAA prepared the Final EA in accordance with the National Environmental Policy Act and the FAA's regulations and guidelines for environmental documents and was signed on April 16, 2010. Copies of the FONSI/ROD and/or Final EA are available by contacting Ms. Virginia Marcks through the contact information provided below.
Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, AJW-C14D, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone number: (847) 294-7494.
The Final EA evaluated the construction and operation of the new ORD ASR-9 at DuPage Airport (DPA) in West Chicago, Illinois. The purpose and need of the ORD West ASR-9 is to enhance air traffic management for ORD to achieve the benefits of providing expanded radar coverage that would allow terminal air traffic control for additional new approach routes (West High and Wide approaches), as evaluated and approved in the O'Hare Modernization Environmental Impact Statement (EIS) and ROD.
The proposed ASR-9 would be constructed at a 200 foot (ft) × 200 ft area located west of the intersection of Kress Road and Western Drive on land leased from DPA. The total height of the ASR-9 tower structure would be 116 ft above ground level. The ASR-9 system consists of a tower, a rotating radar sail that transmits and receives the radio signals, an equipment building housing radar equipment, and an emergency generator with an aboveground storage tank for diesel fuel. One moving target indicator reflector and two Calibration and Performance Monitoring Equipment modules would be located at least 1 nautical mile from the preferred ASR-9 site. The FAA would construct a 24 ft wide × 400 ft long access road to the
The Final EA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” In addition, FAA Order 5050.4B, “National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions” has been used as guidance in the preparation of the environmental analysis.
Federal Aviation Administration (FAA), DOT.
Notice of Availability of a Final Environmental Assessment (Final EA) and Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for a Proposed Airport Traffic Control Tower and Base Building at Kalamazoo/Battle Creek International Airport, Portage City, Michigan.
The Federal Aviation Administration (FAA) is issuing this notice to advise the public that the FAA has prepared, and approved on April 16, 2010, a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) based on the Final Environmental Assessment (Final EA) for a Proposed Airport Traffic Control Tower (ATCT) with Associated Base Building at Kalamazoo/Battle Creek International Airport (AZO), Portage City, Michigan. The FAA prepared the Final EA in accordance with the National Environmental Policy Act and the FAA's regulations and guidelines for environmental documents and it was signed on April 9, 2010. Copies of the FONSI/ROD and/or Final EA are available by contacting Ms. Virginia Marcks through the contact information provided below.
Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, AJW-C14D, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone number: (847) 294-7494.
The Final EA evaluated the construction and operation of a new ATCT at AZO. The ATCT would be located on vacant land in the northeast quadrant of AZO, east of main Runway 17/35 and between Runways 23 and 27. The ATCT site will occupy approximately 9.28 acres, and is 857 feet above mean sea level. The new ATCT will be a Low Activity Level facility with a 395-square-foot cab accommodating two operational positions and two support positions. The new ATCT will improve visibility of airport surfaces, have the capability to meet future operational and administrative expansion requirements, and increase the efficient functionality of the facility. In addition to the ATCT, the Final EA evaluated the construction and operation of a new 20,000-square-foot standard design Terminal Radar Approach Control Facility/Base Building conforming to the guidelines of the Terminal Facilities Design Standards for Base Building and Environmental Support Buildings with modified space designations and minor room sizing. The Base Building would meet current and future administrative space requirements. The project also includes, and the Final EA evaluated, construction of a paved parking area next to the Base Building, relocation of a portion of the existing airport perimeter road approximately 40 feet to the west of its current location, construction of a new paved access drive from East Kilgore Road to the ATCT site, construction of a 10-foot fence around the entire facility and a new fence from East Kilgore Road to the facility, Dopplerization of the Very High Frequency Omni-Directional Range facility, lease of the ATCT parcel from the airport, approval of Federal funding for the project, and update of the Airport Layout Plan.
The Final EA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” In addition, FAA Order 5050.4B, “National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions” has been used as guidance in the preparation of the environmental analysis.
Federal Aviation Administration (FAA), DOT.
Notice of Availability of a Final Environmental Assessment (Final EA) and Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for the Proposed Airport Development at Sawyer County Airport, Hayward, Wisconsin.
The Federal Aviation Administration (FAA) is issuing this notice to advise the public that the FAA has prepared, and approved on May 16, 2010, a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) based on the Final Environmental Assessment (Final EA) for the Proposed Airport Development at Sawyer County Airport, Hayward, Wisconsin. The FAA prepared the Final EA in accordance with the National Environmental Policy Act and the FAA's regulations and guidelines for environmental documents. The Final EA was reviewed and evaluated by the FAA, and was accepted on February 16, 2010 as a Federal document by the FAA's Responsible Federal Official. Copies of the FONSI/ROD and/or Final EA are available by contacting Ms. Virginia Marcks through the contact information provided below.
Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, AJW-C14D, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone number: (847) 294-7494.
The Final EA evaluated the Proposed Airport Development at Sawyer County Airport
The FAA and the Wisconsin Department of Transportation Bureau of Aeronautics (WisDOT BOA) jointly prepared the Final EA, pursuant to the requirements of the National Environmental Policy Act and the Wisconsin Environmental Policy Act, respectively. A joint Federal-State EA was prepared since the Proposed Airport Development includes both Federal actions and State block program actions. Actions for the proposed airport development would be taken by the FAA or WisDOT BOA.
Specific construction activities of the Proposed Airport Development include: demolition of approximately 6,435 feet of Airport Road; construction of approximately 6,405 feet of relocated Airport Road; installation of ILS components on the north end of Runway 20; construction of access roads and equipment shelter buildings; construction of the parallel taxiway/ramp expansion on the west side of the runway; obstruction removal, including clearing 27.7 acres of conifer swamp, 11.3 acres of lowland hardwoods swamp, and 10.3 acres of shrub-carr; acquisition of 66 acres of land; and relocation and/or removal of Runway 20 navigational aids.
The Final EA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” In addition, FAA Order 5050.4B, “National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions” has been used as guidance in the preparation of the environmental analysis.
The Department of the Treasury will submit the following public information collection requirements to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. A copy of the submissions may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding these information collections should be addressed to the OMB reviewer listed and to the Treasury PRA Clearance Officer, Department of the Treasury, 1750 Pennsylvania Avenue, NW., Suite 11010, Washington, DC 20220.
Written comments should be received on or before August 23, 2010 to be assured of consideration.
The Department of Treasury will submit the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, and 1750 Pennsylvania Avenue, NW. Washington, DC 20220.
Written comments should be received on or before August 23, 2010 to be assured of consideration.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comments.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a proposed information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. Currently, the OCC is soliciting comments concerning an information collection titled “Guidance on Sound Incentive Compensation Practices.”
Written comments should be submitted by September 20, 2010.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2-3, Attention 1557-0245, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by facsimile transmission to (202) 874-5274, or by electronic mail to
Additionally, you should send a copy of your comments by mail to: OCC Desk Officer, 1557-0245, U.S. Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, or by fax to (202) 395-6974.
You can request additional information or a copy of the collection from Mary H. Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is requesting regular clearance of a collection for which it received emergency approval.
All comments will be considered in formulating the subsequent submission and become a matter of public record. Comments are invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCCs estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
_____________________________
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Affiliate Marketing/Consumer Opt-Out Notices.”
Comments must be submitted on or before September 20, 2010.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2-3, Attention: 1557-0230, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-5274, or by electronic mail to
Additionally, please send a copy of your comments to: OCC Desk Officer, [1557-0230], by mail to U.S. Office of Management and Budget, 725 17th St., NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary H. Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
Financial institutions will use the required notices to inform consumers about their rights under section 624 of Fair Credit Reporting Act and to comply with 12 CFR part 41, Subpart C. Consumers will use the notices to decide if they want to receive solicitations for marketing purposes or opt out. Financial institutions will use the consumers' opt out responses to determine the permissibility of using eligibility information obtained from an affiliate to make solicitations to the consumer. The responses will be used by financial institutions to comply with section 214 of the Fair and Accurate Credit Transactions Act of 2003 (FACT Act).
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection 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 information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Examination Questionnaire.”
Comments must be submitted by September 20, 2010.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2-3, Attention: 1557-0199, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-5274, or by electronic mail to
Additionally, please send a copy of your comments to OCC Desk Officer, 1557-0199, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is proposing to extend the approval for the following information collection:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection 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 information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Record and Disclosure Requirements—FRB Regulations B, E, M, Z, CC, and DD.”
Comments must be submitted on or before September 20, 2010.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2-3, Attention: 1557-0176, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-5274, or by electronic mail to
Additionally, please send a copy of your comments to OCC Desk Officer, 1557-0176, by mail to U.S. Office of Management and Budget, 725 17th
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary H. Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
This regulation prohibits lenders from discriminating against credit applicants, establishes guidelines for gathering and evaluating information about personal characteristics in applications for certain dwelling-related loans, requires lenders to provide applicants with copies of appraisal reports in connection with credit transactions, and requires written notification of action taken on a credit application.
This regulation requires certain mortgage lenders to report certain home loan application information and to disclose certain data regarding their home mortgage lending.
This regulation establishes the rights, liabilities, and responsibilities of parties in electronic fund transfers and offers protections to consumers when they use such systems.
This regulation implements the consumer leasing provisions of the Truth in Lending Act by requiring meaningful disclosure of leasing terms.
This regulation prescribes uniform methods for computing the cost of credit, disclosing credit terms and costs, and resolving errors on certain types of credit accounts.
This regulation establishes timeframes to govern the availability of funds deposited in checking accounts, rules to govern the collection and return of checks, and general provisions to govern the use of substitute checks.
This regulation requires depository institutions to provide disclosures sufficient to enable consumers to make informed comparisons about accounts at depository institutions.
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection 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 information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Revenue Procedure 2007-69, Section 45H Certification.
Written comments should be received on or before
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing notice of proposed rulemaking, REG-209619-93, Escrow Funds and Other Similar Funds (§§ 1.469B-1(k)(2), 1.468B-1(k)(3)(iv), 1.468B-6(e)(1), 1.468B-6(f), 1.468B-7(d), 1.468B-8(f), 1.468B-8(g)(1), 1.468B-9(c)(1), and 1.468B-9(f)(3).
Written comments should be received on or before November 16, 2007 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of regulation, the form and instructions should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington DC 20224, or through the Internet, at
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Regulation 121475-03 (TD 9339) Qualified Zone Academy Bonds: Obligations of States and Political Subdivision.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8825, Rental Real Estate Income and Expenses of a Partnership or an S Corporation.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 13560, HCTC Health Plan Administrator (HPA) Return of Funds Form.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing proposed regulation, REG-134235-08, Furnishing Identifying Number of Tax Return Preparer.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing proposed regulation, REG-112841-10, Indoor Tanning Services; Cosmetic Services; Excise Tax.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8826, Disabled Access Credit.
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for copies of the form and instructions should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1065 (U.S. Return of Partnership Income), Schedule D (Capital Gains and Losses), Schedule K-1 (Partner's Share of Income, Credits, Deductions and Other Items), Schedule L (Balance Sheets per Books), Schedule M-1 (Reconciliation of Income (Loss) per Books With Income (Loss) per Return)), Schedule M-2 (Analysis of Partners' Capital Accounts), and Schedule M-3 (Net Income (Loss) Reconciliation for Certain Partnerships)).
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the form(s) and instructions should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Announcement 2004-4, Son of Boss Settlement Initiative.
Written comments should be received on or before September 20, 2010 to be assured consideration.
Direct all written comments to Gerald Shields, Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the announcement should be directed to Elaine Christophe at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224, or at (202) 622-3179, or through the Internet at Elaine.H.Christophe@irs.gov.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning an existing final regulation, PS-100-88 (TD 8540), Valuation Tables (§§ 1.7520-1 through 1.7520-4, 20.7520-1 through 20.7520-4, and 25.7520-1 through 25.7520-4).
Written comments should be received on or before September 20, 2010 to be assured of consideration.
Direct all written comments to Gerald Shields, Room 6129, 1111 Constitution Avenue, NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Elaine Christophe, (202) 622-3179, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue, NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information
Office of Thrift Supervision (OTS), Treasury.
Notice and request for comment.
The proposed information collection request (ICR) described below has been submitted to the Office of Management and Budget (OMB) for review and approval, as required by the Paperwork Reduction Act of 1995. OTS is soliciting public comments on the proposal.
Submit written comments on or before August 23, 2010. A copy of this ICR, with applicable supporting documentation, can be obtained from RegInfo.gov at
Send comments, referring to the collection by title of the proposal or by OMB approval number, to OMB and OTS at these addresses: Office of Information and Regulatory Affairs,
For further information or to obtain a copy of the submission to OMB, please contact Ira L. Mills at,
OTS may not conduct or sponsor an information collection, and respondents are not required to respond to an information collection, unless the information collection displays a currently valid OMB control number. As part of the approval process, we invite comments on the following information collection.
The regulations assist consumers in comparing deposit accounts offered by depository institutions. Consumers receive disclosures about fees, annual percentage yield, interest rate, and other account terms whenever a consumer requests the information and before the consumer opens an account. The regulation also requires that savings associations provide fees and other information on any periodic statement the institution sends to the consumer. Regulation DD contains rules for advertisements of deposit accounts and advance notices to account holders of adverse changes in terms.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) is publishing the names of four individuals whose property and interests in property have been unblocked pursuant to Executive Order 12978 of October 21, 1995,
The unblocking and removal from the list of Specially Designated Nationals and Blocked Persons (“SDN List”) of the individuals identified in this notice whose property and interests in property were blocked pursuant to Executive Order 12978 of October 21, 1995, is effective on July 15, 2010.
Assistant Director, Compliance Outreach and Implementation, Office of Foreign Assets Control, Department of
This document and additional information concerning OFAC are available from OFAC's Web site (
On October 21, 1995, the President, invoking the authority,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, or that hereafter come within the United States or that are or hereafter come within the possession or control of United States persons, of: (1) The persons listed in an Annex to the Order; (2) any foreign person determined by the Secretary of Treasury, in consultation with the Attorney General and Secretary of State: (a) to play a significant role in international narcotics trafficking centered in Colombia; or (b) to materially assist in, or provide financial or technological support for or goods or services in support of, the narcotics trafficking activities of persons designated in or pursuant to the Order; and (3) persons determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be owned or controlled by, or to act for or on behalf of, persons designated pursuant to the Order.
On July 15, 2010 the Director of OFAC removed from the SDN List the four individuals listed below, whose property and interests in property were blocked pursuant to the Order:
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice updates the payment rates for inpatient rehabilitation facilities (IRFs) for Federal fiscal year (FY) 2011 (for discharges occurring on or after October 1, 2010 and on or before September 30, 2011) as required under section 1886(j)(3)(C) of the Social Security Act (the Act). Section 1886(j)(5) of the Act requires the Secretary to publish in the
Because of the many terms to which we refer by acronym in this notice, we are listing the acronyms used and their corresponding terms in alphabetical order below.
Section 4421 of the Balanced Budget Act of 1997 (BBA, Pub. L. 105-33, enacted on August 5, 1997), as amended by section 125 of the Medicare, Medicaid, State Children's Health Insurance Program (SCHIP) Balanced Budget Refinement Act of 1999 (BBRA, Pub. L. 106-113, enacted November 29, 1999) and by section 305 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA, Pub. L. 106-554, enacted December 21, 2000) provides for the implementation of a per discharge prospective payment system (PPS) under section 1886(j) of the Social Security Act (the Act) for inpatient rehabilitation hospitals and inpatient rehabilitation units of a hospital (hereinafter referred to as IRFs).
Payments under the IRF PPS encompass inpatient operating and capital costs of furnishing covered rehabilitation services (that is, routine, ancillary, and capital costs) but not direct graduate medical education costs, costs of approved nursing and allied health education activities, bad debts, and other services or items outside the scope of the IRF PPS. Although a complete discussion of the IRF PPS provisions appears in the original FY 2002 IRF PPS final rule (66 FR 41316) and the FY 2006 IRF PPS final rule (70 FR 47880), we are providing below a
Under the IRF PPS from FY 2002 through FY 2005, as described in the FY 2002 IRF PPS final rule (66 FR 41316), the Federal prospective payment rates were computed across 100 distinct (Case-Mix Group) CMGs. We constructed 95 CMGs using rehabilitation impairment categories (RICs), functional status (both motor and cognitive), and age (in some cases, cognitive status and age may not be a factor in defining a CMG). In addition, we constructed five special CMGs to account for very short stays and for patients who expire in the IRF.
For each of the CMGs, we developed relative weighting factors to account for a patient's clinical characteristics and expected resource needs. Thus, the weighting factors accounted for the relative difference in resource use across all CMGs. Within each CMG, we created tiers based on the estimated effects that certain comorbidities would have on resource use.
We established the Federal PPS rates using a standardized payment conversion factor (formerly referred to as the budget neutral conversion factor). For a detailed discussion of the budget neutral conversion factor, please refer to our FY 2004 IRF PPS final rule (68 FR 45684 through 45685). In the FY 2006 IRF PPS final rule (70 FR 47880), we discussed in detail the methodology for determining the standard payment conversion factor.
We applied the relative weighting factors to the standard payment conversion factor to compute the unadjusted Federal prospective payment rates under the IRF PPS from FYs 2002 through 2005. Within the structure of the payment system, we then made adjustments to account for interrupted stays, transfers, short stays, and deaths. Finally, we applied the applicable adjustments to account for geographic variations in wages (wage index), the percentage of low-income patients, location in a rural area (if applicable), and outlier payments (if applicable) to the IRF's unadjusted Federal prospective payment rates.
For cost reporting periods that began on or after January 1, 2002 and before October 1, 2002, we determined the final prospective payment amounts using the transition methodology prescribed in section 1886(j)(1) of the Act. Under this provision, IRFs transitioning into the PPS were paid a blend of the Federal IRF PPS rate and the payment that the IRF would have received had the IRF PPS not been implemented. This provision also allowed IRFs to elect to bypass this blended payment and immediately be paid 100 percent of the Federal IRF PPS rate. The transition methodology expired as of cost reporting periods beginning on or after October 1, 2002 (FY 2003), and payments for all IRFs now consist of 100 percent of the Federal IRF PPS rate.
We established a CMS Web site as a primary information resource for the IRF PPS. The Web site URL is
Section 1886(j) of the Act confers broad statutory authority upon the Secretary to propose refinements to the IRF PPS. In the FY 2006 IRF PPS final rule (70 FR 47880) and in correcting amendments to the FY 2006 IRF PPS final rule (70 FR 57166) that we published on September 30, 2005, we finalized a number of refinements to the IRF PPS case-mix classification system (the CMGs and the corresponding relative weights) and the case-level and facility-level adjustments. These refinements included the adoption of the Office of Management and Budget's (OMB) Core-Based Statistical Area (CBSA) market definitions, modifications to the CMGs, tier comorbidities, and CMG relative weights, implementation of a new teaching status adjustment for IRFs, revision and rebasing of the market basket index used to update IRF payments, and updates to the rural, low-income percentage (LIP), and high-cost outlier adjustments. Beginning with the FY 2006 IRF PPS final rule (70 FR 47908 through 47917), the market basket index used to update IRF payments is a 2002-based market basket reflecting the operating and capital cost structures for freestanding IRFs and long-term care hospitals (LTCHs) (hereafter referred to as the rehabilitation, psychiatric, and long-term care (RPL) market basket). Any reference to the FY 2006 IRF PPS final rule in this notice also includes the provisions effective in the correcting amendments. For a detailed discussion of the final key policy changes for FY 2006, please refer to the FY 2006 IRF PPS final rule (70 FR 47880 and 70 FR 57166).
In the FY 2007 IRF PPS final rule (71 FR 48354), we further refined the IRF PPS case-mix classification system (the CMG relative weights) and the case-level adjustments, to ensure that IRF PPS payments would continue to reflect as accurately as possible the costs of care. For a detailed discussion of the FY 2007 policy revisions, please refer to the FY 2007 IRF PPS final rule (71 FR 48354).
In the FY 2008 IRF PPS final rule (72 FR 44284), we updated the Federal prospective payment rates and the outlier threshold, revised the IRF wage index policy, and clarified how we determine high-cost outlier payments for transfer cases. For more information on the policy changes implemented for FY 2008, please refer to the FY 2008 IRF PPS final rule (72 FR 44284), in which we published the final FY 2008 IRF Federal prospective payment rates.
After publication of the FY 2008 IRF PPS final rule (72 FR 44284), section 115 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA, Pub. L. 110-173, enacted December 29, 2007), amended section 1886(j)(3)(C) of the Act to apply a zero percent increase factor for FYs 2008 and 2009, effective for IRF discharges occurring on or after April 1, 2008. Section 1886(j)(3)(C) of the Act required the Secretary to develop an increase factor to update the IRF Federal prospective payment rates for each FY. Based on the legislative change to the increase factor, we revised the FY 2008 Federal prospective payment rates for IRF discharges occurring on or after April 1, 2008. Thus, the final FY 2008 IRF Federal prospective payment rates that were published in the FY 2008 IRF PPS final rule (72 FR 44284) were effective for discharges occurring on or after October 1, 2007 and on or before March 31, 2008; and the revised FY 2008 IRF Federal prospective payment rates were effective for discharges occurring on or after April 1, 2008 and on or before September 30, 2008. The revised FY 2008 Federal prospective payment rates are available on the CMS Web site at
In the FY 2009 IRF PPS final rule (73 FR 46370), we updated the CMG relative weights, the average length of stay values, and the outlier threshold; clarified IRF wage index policies regarding the treatment of “New England deemed”counties and multi-campus hospitals; and revised the regulation text in response to section 115 of the MMSEA to set the IRF compliance percentage at 60 percent (“the 60 percent rule”) and continue the practice of including comorbidities in the calculation of compliance percentages. We also applied a zero percent market basket increase factor for FY 2009 in accordance with section 115 of the MMSEA. For more information on the policy changes implemented for FY 2009, please refer to the FY 2009 IRF PPS final rule (73 FR 46370), in which
In the FY 2010 IRF PPS final rule (74 FR 39762) and in correcting amendments to the FY 2010 IRF PPS final rule (74 FR 50712) that we published on October 1, 2009, we updated the Federal prospective payment rates, the CMG relative weights, the average length of stay values, the rural, LIP, and teaching status adjustment factors, and the outlier threshold; implemented new IRF coverage requirements for determining whether an IRF claim is reasonable and necessary; and revised the regulation text to require IRFs to submit patient assessments on Medicare Advantage (Medicare Part C) patients for use in the 60 percent rule calculations. Any reference to the FY 2010 IRF PPS final rule in this notice also includes the provisions effective in the correcting amendments. For more information on the policy changes implemented for FY 2010, please refer to the FY 2010 IRF PPS final rule (74 FR 39762 and 74 FR 50712), in which we published the final FY 2010 IRF Federal prospective payment rates.
After publication of the FY 2010 IRF PPS final rule (74 FR 39762), section 3401(d) of the Patient Protection and Affordable Care Act (Affordable Care Act, Pub. L. 111-148, enacted March 23, 2010), as amended by section 10319 of the same act and by section 1105 of the Health Care and Education Reconciliation Act of 2010, amended section 1886(j)(3)(C) of the Act and added section 1886(j)(3)(D). Section 1886(j)(3)(C) of the Act requires the Secretary to develop an adjusted market basket increase factor using applicable productivity and other adjustments as defined by the Act. This adjusted market basket increase factor is to be used to update the IRF Federal prospective payment rates for each FY from 2012 forward. Section 1886(j)(3)(D)(i)(1) defines the adjustment that is to be applied to the market basket increase factor in FYs 2010 and 2011. The Secretary is to reduce the market basket increase factor by 0.25 percentage point for FY 2010. Notwithstanding these provisions, in accordance with paragraph (p) of section 3401 of the Affordable Care Act, the adjusted FY 2010 rate is only to be applied to discharges occurring on or after April 1, 2010. Section 1886(j)(3)(D)(i)(I) of the Act also requires the Secretary to reduce the market basket increase factor by 0.25 percentage point for FY 2011. Based on these legislative changes to section 1886(j)(3), we adjust the FY 2010 Federal prospective payment rates, and apply these rates to IRF discharges occurring on or after April 1, 2010. Thus, the final FY 2010 IRF Federal prospective payment rates that were published in the FY 2010 IRF PPS final rule (74 FR 39762) were used for discharges occurring on or after October 1, 2009 and on or before March 31, 2010; and the adjusted FY 2010 IRF Federal prospective payment rates apply to discharges occurring on or after April 1, 2010. The adjusted FY 2010 Federal prospective payment rates are available on the CMS Web site at
In addition, sections 1886(j)(3)(C) and (D) of the Act also affected the FY 2010 IRF outlier threshold amount because they required an adjustment to the FY 2010 RPL market basket increase factor, which changed the standard payment conversion factor for FY 2010. Specifically, the original FY 2010 IRF outlier threshold amount was determined based on the original estimated FY 2010 RPL market basket increase factor of 2.5 percent and the standard payment conversion factor of $13,661. However, as adjusted, the IRF prospective payments are based on the adjusted RPL market basket increase factor of 2.25 percent and the revised standard payment conversion factor of $13,627. In order to maintain estimated outlier payments for FY 2010 equal to the established standard of 3 percent of total estimated IRF PPS payments for FY 2010, we revised the IRF outlier threshold amount for FY 2010 for discharges occurring on or after April 1, 2010. The revised IRF outlier threshold amount for FY 2010 is discussed in more detail in section VI.A of this notice.
As described in the FY 2002 IRF PPS final rule, upon the admission and discharge of a Medicare Part A fee-for-service patient, the IRF is required to complete the appropriate sections of a patient assessment instrument (PAI), designated as the Inpatient Rehabilitation Facility-Patient Assessment Instrument (IRF-PAI). In addition, beginning with IRF discharges occurring on or after October 1, 2009, the IRF is also required to complete the appropriate sections of the IRF-PAI upon the admission and discharge of each Medicare Part C (Medicare Advantage) patient, as described in the FY 2010 IRF PPS final rule. All required data must be electronically encoded into the IRF-PAI software product. Generally, the software product includes patient classification programming called the GROUPER software. The GROUPER software uses specific IRF-PAI data elements to classify (or group) patients into distinct CMGs and account for the existence of any relevant comorbidities.
The GROUPER software produces a five-digit CMG number. The first digit is an alpha-character that indicates the comorbidity tier. The last four digits represent the distinct CMG number. Free downloads of the Inpatient Rehabilitation Validation and Entry (IRVEN) software product, including the GROUPER software, are available on the CMS Web site at
Once a patient is discharged, the IRF submits a Medicare claim as a Health Insurance Portability and Accountability Act of 1996 (HIPAA, Pub. L. 104-191, enacted August 21, 1996), compliant electronic claim or, if the Administrative Simplification Compliance Act of 2002 (ASCA, Pub. L. 107-105, enacted December 27, 2002) permits, a paper claim (a UB-04 or a CMS-1450 as appropriate) using the five-digit CMG number and sends it to the appropriate Medicare fiscal intermediary (FI) or Medicare Administrative Contractor (MAC). Claims submitted to Medicare must comply with both ASCA and HIPAA.
Section 3 of the ASCA amends section 1862(a) of the Act by adding paragraph (22) which requires the Medicare program, subject to section 1862(h) of the Act, to deny payment under Part A or Part B for any expenses for items or services “for which a claim is submitted other than in an electronic form specified by the Secretary.” Section 1862(h) of the Act, in turn, provides that the Secretary shall waive such denial in situations in which there is no method available for the submission of claims in an electronic form or the entity submitting the claim is a small provider. In addition, the Secretary also has the authority to waive such denial “in such unusual cases as the Secretary finds appropriate.” For more information we refer the reader to the final rule, “Medicare Program; Electronic Submission of Medicare Claims” (70 FR 71008, November 25, 2005). CMS instructions for the limited number of Medicare claims submitted on paper are available at:
Section 3 of the ASCA operates in the context of the administrative simplification provisions of HIPAA, which include, among others, the requirements for transaction standards and code sets codified in 45 CFR, parts 160 and 162, subparts A and I through
The Medicare FI or MAC processes the claim through its software system. This software system includes pricing programming called the “PRICER” software. The PRICER software uses the CMG number, along with other specific claim data elements and provider-specific data, to adjust the IRF's prospective payment for interrupted stays, transfers, short stays, and deaths, and then applies the applicable adjustments to account for the IRF's wage index, percentage of low-income patients, rural location, and outlier payments. For discharges occurring on or after October 1, 2005, the IRF PPS payment also reflects the new teaching status adjustment that became effective as of FY 2006, as discussed in the FY 2006 IRF PPS final rule (70 FR 47880).
In this notice, we use the methods described in the FY 2010 IRF PPS final rule (74 FR 39762) to update the Federal prospective payment rates for FY 2011 using updated FY 2009 IRF claims and FY 2008 IRF cost report data. No policy changes are being proposed in this notice. Furthermore, we explain the self-implementing changes resulting from the provisions in section 1886(j)(3)(C) and (D) of the Act, as described above.
In summary, this notice:
• Describes the adjustments to the FY 2010 IRF PPS Federal prospective payment rates and outlier threshold amount for IRF discharges occurring on or after April 1, 2010, in accordance with Section 3401(d) of the Affordable Care Act as amended by Section 10319 of the Same Act and by section 1105(c) of the Health Care and Education Reconciliation Act of 2010, as discussed in more detail in sections V.A and VI.A of this notice.
• Updates the FY 2011 IRF PPS relative weights and average length of stay values using the most current and complete Medicare claims and cost report data in a budget neutral manner, as discussed in section III of this notice.
• Updates the FY 2011 IRF PPS payments rates by a market basket increase factor, based upon the most current data available, with a 0.25 percentage point reduction as required by section 1886(j)(3)(D)(i)(I) of the Act, as described in section V.B of this notice.
• Updates the FY 2011 IRF PPS payment rates by the FY 2011 wage index and the labor-related share in a budget neutral manner, as discussed in sections V.B and V.C of this notice.
• Describes the calculation of the IRF Standard Payment Conversion Factor for FY 2011, as discussed in section V.D of this notice.
• Updates the outlier threshold amount for FY 2011, as discussed in section VI.B of this notice.
• Updates the cost-to-charge ratio (CCR) ceilings for FY 2011, as discussed in section VI.C of this notice.
This notice does not contain any revisions to existing regulation text.
As specified in 42 CFR 412.620(b)(1), we calculate a relative weight for each CMG that is proportional to the resources needed by an average inpatient rehabilitation case in that CMG. For example, cases in a CMG with a relative weight of 2, on average, will cost twice as much as cases in a CMG with a relative weight of 1. Relative weights account for the variance in cost per discharge due to the variance in resource utilization among the payment groups, and their use helps to ensure that IRF PPS payments support beneficiary access to care as well as provider efficiency.
As required by statute, we always use the most recent available data to update the CMG relative weights and average lengths of stay. For FY 2011, we used FY 2009 IRF claims and FY 2008 IRF cost report data. These data are the most current and complete data available at this time. Currently, less than 20 percent of the FY 2009 IRF cost report data are available for analysis, but the majority of the FY 2009 IRF claims data are available for analysis.
We will apply these data using the methodologies that were established in the FY 2002 IRF PPS final rule (66 FR 41316). In calculating the CMG relative weights, we use a hospital-specific relative value method to estimate operating (routine and ancillary services) and capital costs of IRFs. The process used to calculate the CMG relative weights for this notice is as follows:
Consistent with the methodology that we have used to update the IRF classification system in each instance in the past, we are updating the CMG relative weights for FY 2011 in such a way that total estimated aggregate payments to IRFs for FY 2011 are the same with or without the changes (that is, in a budget neutral manner) by applying a budget neutrality factor to the standard payment amount. To calculate the appropriate budget neutrality factor for use in updating the FY 2011 CMG relative weights, we use the following steps:
In section V.D of this notice, we discuss the use of the existing methodology to calculate the standard payment conversion factor for FY 2011.
The CMG relative weights and average length of stay values for FY 2011 are presented below in Table 1.
Generally, updates to the CMG relative weights result in some increases and some decreases to the CMG relative weight values. Table 2 shows how the application of the revisions for FY 2011 will affect particular CMG relative weight values, which affect the overall distribution of payments within CMGs and tiers. Note that, because we are implementing the CMG relative weight revisions in a budget neutral manner (as described above), total estimated aggregate payments to IRFs for FY 2011 will not be affected as a result of the CMG relative weight revisions. However, the revisions will affect the distribution of payments within CMGs and tiers.
As Table 2 shows, over 98 percent of all IRF cases are in CMGs and tiers that will experience less than a 5 percent change (either increase or decrease) in the CMG relative weight value as a result of the revisions for FY 2011. The largest increase in the CMG relative weight values affecting the most cases is a 3.0 percent increase in the CMG relative weight value for CMG 0802—Replacement of Lower Extremity Joint, with a motor score between 37.05 and 49.55—in the “no comorbidity” tier. In the FY 2009 data, 12,149 IRF discharges were classified into this CMG and tier. We believe that the higher costs reported by IRFs for this CMG and tier in FY 2009, compared with the costs reported in FY 2008, may continue to reflect the IRF trend away from admitting lower-severity joint replacement cases in favor of higher-severity joint replacement cases. We believe that this may be evidence of a response, at least in part, to Medicare's “60 percent” rule, and the increased focus on the medical review of IRF cases. As we said in the FY 2009 IRF PPS proposed rule (73 FR 22680), these policies likely increase the complexity of patients being admitted to IRFs, especially among the lower-extremity joint replacement cases with no comorbidities, which often do not meet the 60 percent rule criteria and have been the focus of a lot of the medical review activities.
The largest decrease in a CMG relative weight value affecting the most cases is a 0.5 percent decrease in the CMG relative weight for CMG A0110—Stroke, with motor score less than 22.35 and patient age less than 84.5 years—in the “no comorbidity” tier. In the FY 2009 IRF claims data, this change affects 16,829 cases. The decrease in the relative weight for CMG A0110 follows the same trend that is occurring in all 10 of the CMGs for stroke in the FY 2008 IRF cost report data and the FY 2009 IRF claims data that were used to update the CMG relative weights in this notice. That is, IRFs are reporting slightly lower costs for stroke patients that are classified into the “no comorbidity” tier and the next-lowest paying tier 3, with the relative weight values for CMG 0110 for FY 2011 decreasing by 0.5 percent in the “no comorbidity” tier and decreasing by 0.4 percent in tier 3, compared with FY 2010. At the same time, however, IRFs are reporting higher costs for stroke patients that are classified into the 2 highest-paying tiers—tiers 1 and 2—with the relative weight values for CMG 0110 for FY 2011
The changes in the average length of stay values for FY 2011, compared with the FY 2010 average length of stay values, are small and do not show any particular trends in IRF length of stay patterns.
Section 1886(j)(3)(A)(v) of the Act confers broad authority upon the Secretary to adjust the per unit payment rate “by such * * * factors as the Secretary determines are necessary to properly reflect variations in necessary costs of treatment among rehabilitation facilities.” For example, we adjust the Federal prospective payment amount associated with a CMG to account for facility-level characteristics such as an IRF's LIP percentage, teaching status, and location in a rural area, if applicable, as described in § 412.624(e). In the FY 2010 IRF PPS final rule (74 FR 39762), we updated the adjustment factors for calculating the rural, LIP, and teaching status adjustments based on the most recent three years worth of IRF claims data (at that time, FY 2006, FY 2007, and FY 2008) and the most recent available corresponding IRF cost report data. As discussed in the FY 2010 IRF PPS proposed rule (74 FR 21060 through 21061), we observed relatively large year-to-year fluctuations in the underlying data used to compute the adjustment factors, especially the teaching status adjustment factor. Therefore, we implemented a three-year moving average approach to updating the facility-level adjustment factors in the FY 2010 IRF PPS final rule (74 FR 39762) to provide greater stability and predictability of Medicare payments for IRFs. Each year, we review the major components of the IRF PPS to maintain and enhance the accuracy of the payment system. For FY 2010, we implemented a change to our methodology that was designed to decrease the IRF PPS volatility by using a three-year moving average to calculate the facility-level adjustment factors. This year, we are evaluating the effectiveness of the new methodology in stabilizing the IRF PPS rate structure. We plan to then, if necessary, propose further adjustments through a future rulemaking process.
As discussed previously in this notice, sections 1886(j)(3)(C) and (D) of the Act require the increase factor to be reduced by 0.25 percentage point for FY 2010 and FY 2011. In accordance with paragraph (p) of section 3401 of the Affordable Care Act, the adjusted FY 2010 market basket increase factor is only applied to discharges on or after April 1, 2010. Thus, we revised the FY 2010 IRF Federal prospective payment rates for all IRF discharges occurring on or after April 1, 2010 to reflect an adjusted market basket increase factor of 2.25 percent, instead of the 2.5 percent market basket increase factor for FY 2010 that was published in the FY 2010 IRF PPS final rule (74 FR 39778). Revising the market basket increase factor for FY 2010 from 2.5 percent to 2.25 percent changes the FY 2010 standard payment conversion factor from the $13,661 that was published in the FY 2010 IRF PPS final rule (74 FR 39780) to $13,627. This change also affects the outlier threshold amount for FY 2010, as discussed further in section VI.A of this notice. The revised FY 2010 Federal prospective payment rates are available on the CMS Web site at
Section 1886(j)(3)(C) of the Act requires the Secretary to establish an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services included in the covered IRF services, which is referred to as a market basket index. According to section 1886(j)(3)(A)(i) of the Act, the increase factor shall be used to update the IRF Federal prospective payment rates for each FY. Sections 1886(j)(3)(C) and (D) of the Act require the application of a 0.25 percentage point reduction to the market basket increase factor for FYs 2010 and 2011. Thus, in this notice, we are updating the IRF PPS payments for FY 2011 by a market basket increase factor based upon the
For this notice, we have used the same methodology described in the FY 2006 IRF PPS final rule (70 FR 47880 at 47908 through 47917) to compute the FY 2011 market basket increase factor and labor-related share. Using this method and the IHS Global Insight, Inc. forecast for the second quarter of 2010 of the 2002-based RPL market basket, the FY 2011 RPL market basket increase factor is 2.5 percent. IHS Global Insight is an economic and financial forecasting firm that contracts with CMS to forecast the components of providers' market baskets.
In accordance with sections 1886(j)(3)(C) and (D) of the Act, a reduction of 0.25 percentage point is then applied to the FY 2011 RPL market basket increase factor of 2.5 percent. Thus, the adjusted RPL market basket increase factor is 2.25 percent for FY 2011.
Also, using the methodology described in the FY 2006 IRF PPS final rule (70 FR 47880, 47908 through 47917), we are updating the IRF labor-related share for FY 2011. Using this method and the IHS Global Insight, Inc. forecast for the second quarter of 2010 of the 2002-based RPL market basket, the IRF labor-related share for FY 2011 is the sum of the FY 2011 relative importance of each labor-related cost category. This figure reflects the different rates of price change for these cost categories between the base year (FY 2002) and FY 2011. As shown in Table 3, the FY 2011 labor-related share is 75.271 percent.
Section 1886(j)(6) of the Act requires the Secretary to adjust the proportion of rehabilitation facilities' costs attributable to wages and wage-related costs (as estimated by the Secretary from time to time) by a factor (established by the Secretary) reflecting the relative hospital wage level in the geographic area of the rehabilitation facility compared to the national average wage level for those facilities. The Secretary is required to update the IRF PPS wage index on the basis of information available to the Secretary on the wages and wage-related costs to furnish rehabilitation services. Any adjustments or updates made under section 1886(j)(6) of the Act for a FY are made in a budget neutral manner.
In the FY 2009 IRF PPS final rule (73 FR 46378), we maintained the methodology described in the FY 2006 IRF PPS final rule to determine the wage index, labor market area definitions, and hold harmless policy consistent with the rationale outlined in the FY 2006 IRF PPS final rule (70 FR 47880, 47917 through 47933).
For FY 2011, we are maintaining the policies and methodologies described in the FY 2009 IRF PPS final rule relating to the labor market area definitions and the wage index methodology for areas with wage data. Thus, we are using the Core-Based Statistical area (CBSA) labor market area definitions and the FY 2010 pre-reclassification and pre-floor hospital wage index data. In accordance with section 1886(d)(3)(E) of the Act, the FY 2010 pre-reclassification and pre-floor hospital wage index is based on data submitted for hospital cost reporting periods beginning on or after October 1, 2005 and before October 1, 2006 (that is, 2006 cost report data).
The labor market designations made by the OMB include some geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the IRF PPS wage index. We have used the same methodology discussed in the FY 2008 IRF PPS final rule (72 FR 44299) to address those geographic areas where there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the FY 2011 IRF PPS wage index.
Additionally, we are incorporating the CBSA changes published in the most recent OMB bulletin that applies to the hospital wage data used to determine the current IRF PPS wage index. The changes were nominal and did not represent substantive changes to the CBSA-based designations. Specifically, OMB added or deleted certain CBSA numbers and revised certain titles. The OMB bulletins are available online at
To calculate the wage-adjusted facility payment for the payment rates set forth in this notice, we multiply the unadjusted Federal payment rate for IRFs by the FY 2011 RPL labor-related share (75.271 percent) to determine the labor-related portion of the standard payment amount. We then multiply the labor-related portion by the applicable IRF wage index from the tables in the addendum to this notice. Table 1 is for urban areas, and Table 2 is for rural areas.
Adjustments or updates to the IRF wage index made under section 1886(j)(6) of the Act must be made in a budget neutral manner. We calculate a
We discuss the calculation of the standard payment conversion factor for FY 2011 in section V.D. of this notice.
To calculate the standard payment conversion factor for FY 2011, as illustrated in Table 4 below, we begin by applying the adjusted market basket increase factor for FY 2011 that was adjusted in accordance with sections 1886(j)(3)(C) and (D) of the Act (2.25 percent, or 2.5 percent less 0.25 percentage point), to the standard payment conversion factor for FY 2010 ($13,627). As described in section V.A of this notice, the adjusted standard payment conversion factor of $13,627 for FY 2010 differs from the original FY 2010 standard payment conversion factor that was published in the FY 2010 IRF PPS final rule (74 FR 39778) because of the requirements of sections 1886(j)(3)(C) and (D) of the Act. Applying the 2.25 percent adjusted market basket increase factor for FY 2011 to the revised standard payment conversion factor for FY 2010 of $13,627 yields a standard payment amount of $13,934. Then, we apply the budget neutrality factor for the FY 2011 wage index and labor related share of 1.0005, which results in a standard payment amount of $13,941. Then, we apply the budget neutrality factor for the revised CMG relative weights of 0.9942, which results in a standard payment amount of $13,860 for FY 2011.
After the application of the CMG relative weights described in section III of this notice, the resulting unadjusted IRF prospective payment rates for FY 2011 are shown below in Table 5, “FY 2011 Payment Rates.”
Table 6 illustrates the methodology for adjusting the Federal prospective payments (as described in sections V.B through V.D of this notice). The examples below are based on two hypothetical Medicare beneficiaries, both classified into CMG 0110 (without comorbidities). The unadjusted Federal prospective payment rate for CMG 0110 (without comorbidities) appears in Table 5 above.
One beneficiary is in Facility A, an IRF located in rural Spencer County, Indiana, and another beneficiary is in Facility B, an IRF located in urban Harrison County, Indiana. Facility A, a rural non-teaching hospital has a disproportionate share hospital (DSH) percentage of 5 percent (which would result in a LIP adjustment of 1.0228), a wage index of 0.8529, and a rural adjustment of 18.4 percent. Facility B, an urban teaching hospital, has a DSH percentage of 15 percent (which would result in a LIP adjustment of 1.0666), a wage index of 0.8964, and a teaching status adjustment of 0.0610.
To calculate each IRF's labor and non-labor portion of the Federal prospective payment, we begin by taking the unadjusted Federal prospective payment rate for CMG 0110 (without comorbidities) from Table 5 above. Then, we multiply the estimated labor-related share (75.271) described in section V.B of this notice by the unadjusted Federal prospective payment rate. To determine the non-labor portion of the Federal prospective payment rate, we subtract the labor portion of the Federal payment from the
To compute the wage-adjusted Federal prospective payment, we multiply the labor portion of the Federal payment by the appropriate wage index found in the addendum in Tables 1 and 2. The resulting figure is the wage-adjusted labor amount. Next, we compute the wage-adjusted Federal payment by adding the wage-adjusted labor amount to the non-labor portion.
Adjusting the wage-adjusted Federal payment by the facility-level adjustments involves several steps. First, we take the wage-adjusted Federal prospective payment and multiply it by the appropriate rural and LIP adjustments (if applicable). Second, to determine the appropriate amount of additional payment for the teaching status adjustment (if applicable), we multiply the teaching status adjustment (0.0610, in this example) by the wage-adjusted and rural-adjusted amount (if applicable). Finally, we add the additional teaching status payments (if applicable) to the wage, rural, and LIP-adjusted Federal prospective payment rates. Table 6 illustrates the components of the adjusted payment calculation.
Thus, the adjusted payment for Facility A would be $31,532.60 and the adjusted payment for Facility B would be $30,442.17.
As discussed in section I.A of this notice, after publication of the FY 2010 IRF PPS final rule (74 FR 39762), Affordable Care Act amended section 1886(j)(3)(C) of the Act and added section 1886(j)(3)(D) which, in concert, required the application of a 0.25 percentage point reduction to the market basket increase factor for FY 2010. Notwithstanding these provisions, paragraph (p) of section 3401 of the Affordable Care Act provides that the adjusted FY 2010 rate is only to be applied to discharges occurring on or after April 1, 2010. Thus, based on the legislative change to the increase factor, we revised the FY 2010 Federal prospective payment rates for IRF discharges occurring on or after April 1, 2010.
In addition, the legislative change to the market basket increase factor for FY 2010 also affects the FY 2010 IRF outlier threshold amount because it reduces the FY 2010 RPL market basket increase factor, which changes the standard payment conversion factor for FY 2010. Specifically, the FY 2010 IRF outlier threshold amount was determined based on the estimated FY 2010 RPL market basket increase factor of 2.5 percent and the standard payment conversion factor of $13,661. However, for FY 2010 IRF discharges occurring on or after April 1, 2010, IRF prospective payments are based on the adjusted RPL market basket increase factor of 2.25 percent and the revised standard payment conversion factor of $13,627. In order to maintain estimated outlier payments in FY 2010 at the percentage adopted in our FY 2010 final rule, we revise the IRF outlier threshold amount for FY 2010 from $10,652 that was published in the FY 2010 IRF PPS final rule (74 FR 39788) to $10,721 for FY 2010 IRF discharges occurring on or after April 1, 2010. The outlier threshold amount of $10,652 continues to apply for IRF discharges occurring on or after October 1, 2009 through March 31, 2010. The revised IRF outlier threshold amount was computed using the same data and the same methodology as was used to compute the FY 2010 outlier threshold amount for the FY 2010 IRF PPS final rule (74 FR 39762).
Section 1886(j)(4) of the Act provides the Secretary with the authority to make payments in addition to the basic IRF prospective payments for cases incurring extraordinarily high costs. A case qualifies for an outlier payment if the estimated cost of the case exceeds the adjusted outlier threshold. We calculate the adjusted outlier threshold by adding the IRF PPS payment for the case (that is, the CMG payment adjusted by all of the relevant facility-level adjustments) and the adjusted threshold amount (also, adjusted by all of the relevant facility-level adjustments). Then, we calculate the estimated cost of a case by multiplying the IRF's overall cost-to-charge (CCR) by the Medicare allowable covered charge. If the estimated cost of the case is higher than the adjusted outlier threshold, we make an outlier payment for the case equal to 80 percent of the difference between the estimated cost of the case and the outlier threshold.
In the FY 2002 IRF PPS final rule (66 FR 41362 through 41363), we discussed our rationale for setting the outlier threshold amount for the IRF PPS so that estimated outlier payments would equal 3 percent of total estimated payments. For the 2002 IRF PPS final rule, we analyzed various outlier policies using 3, 4, and 5 percent of the total estimated payments, and we concluded that an outlier policy set at 3 percent of total estimated payments would optimize the extent to which we could reduce the financial risk to IRFs of caring for high-cost patients, while still providing for adequate payments for all other (non-high cost outlier) cases.
Subsequently, we updated the IRF outlier threshold amount in the FYs 2006 through 2010 IRF PPS final rules (70 FR 47880, 70 FR 57166, 71 FR 48354, 72 FR 44284, 73 FR 46370, 74 FR 39762, respectively) to maintain estimated outlier payments at 3 percent of total estimated payments. We also stated in the FY 2009 final rule (FR 73 46287) that we would continue to analyze the estimated outlier payments for subsequent years and adjust the outlier threshold amount as appropriate to maintain the 3 percent target.
To update the IRF outlier threshold amount for FY 2011 in this notice, we are using FY 2009 claims data and the same methodology that we used to set the initial outlier threshold amount in the FY 2002 IRF PPS final rule (66 FR 41362 through 41363), which is also the same methodology that we used to update the outlier threshold amounts for FYs 2006 through 2010. Based on an analysis of this updated data, we estimate that IRF outlier payments as a percentage of total estimated payments are approximately 3.1 percent in FY 2010. Although we are still analyzing the reasons for this unexpected increase in outlier payments in the FY 2009 IRF claims data, we note that IPPS hospitals experienced about the same magnitude increase in outlier payments in FY 2009 (from 5.1 percent to 5.3 percent). Based on this updated analysis, we will update the FY 2011 outlier threshold amount to ensure that estimated FY 2011 outlier payments are approximately 3 percent of total estimated IRF payments. The outlier threshold amount of $10,721 for discharges occurring on or after April 1, 2010 will be changed to $11,410 in FY 2011 to reduce estimated outlier payments and thereby maintain estimated outlier payments at 3 percent of total estimated aggregate IRF payments for FY 2011.
In accordance with the methodology stated in the FY 2004 IRF PPS final rule (68 FR 45674, 45692 through 45694), we apply a ceiling to IRFs' CCRs. Using the methodology described in that final rule, we are updating the national urban and rural CCRs for IRFs, as well as the national CCR ceiling for FY 2011, in this notice based on analysis of the most recent data that is available. We apply the national urban and rural CCRs in the following situations:
• New IRFs that have not yet submitted their first Medicare cost report.
• IRFs whose overall CCR is in excess of the national CCR ceiling for FY 2011, as discussed below.
• Other IRFs for which accurate data to calculate an overall CCR are not available.
Specifically, for FY 2011, we estimate a national average CCR of 0.620 for rural IRFs, which we calculate by taking an average of the CCRs for all rural IRFs using their most recently submitted cost report data. Similarly, we estimate a national average CCR of 0.489 for urban IRFs, which we calculate by taking an average of the CCRs for all urban IRFs using their most recently submitted cost report data. We apply weights to both of these averages using the IRFs' estimated costs, meaning that the CCRs of IRFs with higher costs factor more heavily
In addition, in accordance with past practice, we set the national CCR ceiling at 3 standard deviations above the mean CCR. Using this method, the national CCR ceiling is set at 2.94 for FY 2011. This means that, if an individual IRF's CCR exceeds this ceiling of 2.94 for FY 2011, we would replace the IRF's CCR with the appropriate national average CCR (either rural or urban, depending on the geographic location of the IRF). We calculate the national CCR ceiling by:
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
We ordinarily publish a notice of proposed rulemaking in the
We have examined the impacts of this notice as required by Executive Order 12866 (September 30, 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA, September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for a major notice with economically significant effects ($100 million or more in any one year). We estimate that this notice is economically significant, as measured by the $100 million threshold and hence also a major rule under the Congressional Review Act. To estimate the total impact of the updates described in this notice, we compare the FY 2011 estimated payments with the revised FY 2010 estimated payments. The revised FY 2010 estimated payments reflect the revised Federal prospective payment rates and outlier threshold amount that applied to IRF discharges occurring on or after April 1, 2010, in accordance with sections 1886(j)(3)(C) and (D) of the Act, as described in sections V.A and VI.A of this notice. Based on this analysis, we estimate that the total impact of these updates on FY 2011 IRF PPS payments will be an increase of approximately $135 million.
The Regulatory Flexibility Act (RFA) requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most IRFs and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $7 million to $34.5 million in any one year. (For details, see the Small Business Administration's final rule that set forth size standards for health care industries, at 65 FR 69432 at
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. As discussed in
Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-04, enacted on March 22, 1995) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. In 2010, that threshold level is approximately $135 million. This notice will not impose spending costs on State, local, or tribal governments, in the aggregate, or by the private sector, of $135 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a final rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. As stated above, this notice will not have a substantial effect on State and local governments, preempt State law, or otherwise have a Federalism implication.
This notice sets forth updates to the IRF PPS rates contained in the FY 2010 final rule, as revised by sections 1886(j)(3)(C) and (D) of the Act for IRF discharges occurring on or after April 1, 2010, as described in sections V.A and VI.A of this notice. Specifically, this notice sets forth updates to the CMG relative weights and length of stay values, the wage index, and the outlier threshold for high-cost cases. This notice also implements a 0.25 percentage point reduction to the FY 2011 RPL market basket increase factor in accordance with sections 1886(j)(3)(C) and (D) of the Act.
We estimate that the FY 2011 impact will be a net increase of $135 million in payments to IRF providers. The impact analysis in Table 7 of this notice represents the projected effects of the updates to IRF PPS payments for FY 2011 compared with the revised estimated IRF PPS payments in FY 2010. The revised FY 2010 estimated payments reflect the revised Federal prospective payment rates and outlier threshold amount that applied to IRF discharges occurring on or after April 1, 2010, in accordance with sections 1886(j)(3)(C) and (D) of the Act, as described in sections V.A and VI.A of this notice. We determine the effects by estimating payments while holding all other payment variables constant. We use the best data available, but we do not attempt to predict behavioral responses to these changes, and we do not make adjustments for future changes in such variables as number of discharges or case-mix.
We note that certain events may combine to limit the scope or accuracy of our impact analysis, because such an analysis is future-oriented and, thus, susceptible to forecasting errors because of other changes in the forecasted impact time period. Some examples could be legislative changes made by the Congress to the Medicare program that would impact program funding, or changes specifically related to IRFs. Although some of these changes may not necessarily be specific to the IRF PPS, the nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon IRFs.
In updating the rates for FY 2011, we are implementing standard annual revisions described in this notice (for example, the update to the wage and market basket indexes used to adjust the Federal rates). We are also implementing a 0.25 percentage point reduction to the FY 2011 RPL market basket increase factor in accordance with sections 1886(j)(3)(C) and (D) of the Act. We estimate that these revisions will increase payments to IRFs by approximately $140 million.
The aggregate change in estimated payments associated with this notice is an increase in payments to IRFs of $135 million for FY 2011. We estimate that the application of the FY 2011 RPL market basket increase factor, as reduced by 0.25 percentage point in accordance with sections 1886(j)(3)(C) and (D) of the Act, will increase aggregate payments to IRFs by $140 million. However, we estimate a $5 million decrease in aggregate payments to IRFs due to the update to the outlier threshold amount to decrease estimated outlier payments from approximately 3.1 percent in FY 2010 to 3.0 percent in FY 2011. Taken together, these updates will result in a net change in estimated payments from FY 2010 to FY 2011 of $135 million.
The effects of the changes that impact IRF PPS payment rates are shown in Table 7. The following changes that affect the IRF PPS payment rates are discussed separately below:
• The effects of the update to the outlier threshold amount, from approximately 3.1 percent to 3.0 percent of total estimated payments for FY 2011, consistent with section 1886(j)(4) of the Act.
• The effects of the annual market basket update (using the RPL market basket) to IRF PPS payment rates, as required by section 1886(j)(3)(A)(i) and section 1886(j)(3)(C) of the Act, including the 0.25 percentage point reduction for FY 2011 in accordance with sections 1886(j)(3)(C) and (D) of the Act.
• The effects of applying the budget-neutral labor-related share and wage index adjustment, as required under section 1886(j)(6) of the Act.
• The effects of the budget-neutral changes to the CMG relative weights and average length of stay values, under the authority of section 1886(j)(2)(C)(i) of the Act.
• The total change in estimated payments based on the FY 2011 payment updates relative to the revised estimated FY 2010 payments. The revised FY 2010 estimated payments reflect the adjusted Federal prospective payment rates and outlier threshold amount that apply to IRF discharges occurring on or after April 1, 2010, in accordance with sections 1886(j)(3)(C) and (D) of the Act.
The table below categorizes IRFs by geographic location, including urban or rural location, and location with respect to CMS's nine census divisions (as defined on the cost report) of the country. In addition, the table divides IRFs into those that are separate rehabilitation hospitals (otherwise called freestanding hospitals in this section), those that are rehabilitation units of a hospital (otherwise called hospital units in this section), rural or urban facilities, ownership (otherwise called for-profit, non-profit, and government), and by teaching status. The top row of the table shows the overall impact on the 1,171 IRFs included in the analysis.
The next 12 rows of Table 7 contain IRFs categorized according to their geographic location, designation as either a freestanding hospital or a unit of a hospital, and by type of ownership; all urban, which is further divided into urban units of a hospital, urban freestanding hospitals, and by type of ownership; and all rural, which is further divided into rural units of a hospital, rural freestanding hospitals, and by type of ownership. There are 968 IRFs located in urban areas included in our analysis. Among these, there are 768 IRF units of hospitals located in urban areas and 200 freestanding IRF hospitals located in urban areas. There are 203
The remaining three parts of Table 7 show IRFs grouped by their geographic location within a region and by teaching status. First, IRFs located in urban areas are categorized with respect to their location within a particular one of the nine CMS geographic regions. Second, IRFs located in rural areas are categorized with respect to their location within a particular one of the nine CMS geographic regions. In some cases, especially for rural IRFs located in the New England, Mountain, and Pacific regions, the number of IRFs represented is small. Finally, IRFs are grouped by teaching status, including non-teaching IRFs, IRFs with an intern and resident to average daily census (ADC) ratio less than 10 percent, IRFs with an intern and resident to ADC ratio greater than or equal to 10 percent and less than or equal to 19 percent, and IRFs with an intern and resident to ADC ratio greater than 19 percent.
The estimated impacts of each payment update described in this notice to the facility categories listed above are shown in the columns of Table 7. The description of each column is as follows:
Column (1) shows the facility classification categories described above.
Column (2) shows the number of IRFs in each category in our FY 2009 analysis file.
Column (3) shows the number of cases in each category in our FY 2009 analysis file.
Column (4) shows the estimated effect of the adjustment to the outlier threshold amount.
Column (5) shows the estimated effect of the update to the IRF PPS payment rates, which includes a 2.5 percent market basket increase factor with the 0.25 percentage point reduction in accordance with sections 1886(f)(3)(C) and (D) of the Act.
Column (6) shows the estimated effect of the update to the IRF labor-related share and wage index, in a budget neutral manner.
Column (7) shows the estimated effect of the update to the CMG relative weights and average length of stay values, in a budget neutral manner.
Column (8) compares our estimates of the payments per discharge, incorporating all of the payment updates reflected in this notice for FY 2011 to our estimates of the revised payments per discharge in FY 2010. The revised FY 2010 estimated payments reflect the revised Federal prospective payment rates and outlier threshold amount that became effective for IRF discharges occurring on or after April 1, 2010, in accordance with sections 1886(j)(3)(C) and (d) of the Act, as described in sections V.A and VI.A of this notice.
The average estimated increase for all IRFs is approximately 2.16 percent. This estimated net increase includes the effects of the RPL market basket increase factor for FY 2011 of 2.5 percent, reduced by 0.25 percentage point in accordance with sections 1886(j)(3)(C) and (D) of the Act. It also includes the approximate 0.1 percent overall estimated decrease in estimated IRF outlier payments from the update to the outlier threshold amount. Since we are making the updates to the IRF wage index and the CMG relative weights in a budget-neutral manner, they will not affect total estimated IRF payments in the aggregate. However, as described in more detail in each section, they will affect the estimated distribution of payments among providers.
The outlier threshold adjustment is presented in column 4 of Table 7. In the FY 2010 IRF PPS final rule (74 FR 39786 through 39788), we used FY 2008 IRF claims data (the best, most complete data available at that time) to set the outlier threshold amount for FY 2010 so that estimated outlier payments would equal 3 percent of total estimated payments for FY 2010. As discussed in section VI.A of this notice, we revised the outlier threshold amount for IRF discharges occurring on or after April 1, 2010 to reflect the reduction to the RPL market basket that was made in accordance with sections 1886(J)(3)(C) and (D) of the Act and to ensure that estimated IRF outlier payments for FY 2010 would continue to equal 3 percent of total estimated payments for FY 2010. This revised analysis was done using the same data and the same methodology that was used to set the FY 2010 outlier threshold amount for the FY 2010 IRF PPS final rule (74 FR 39786 through 39788).
However, for this notice, we are updating our analysis using FY 2009 IRF claims data and, based on this updated analysis, we estimate that IRF outlier payments as a percentage of total estimated IRF payments are 3.1 percent in FY 2010. Thus, we are adjusting the outlier threshold amount in this notice to set total estimated outlier payments equal to 3 percent of total estimated payments in FY 2011. The estimated change in total IRF payments for FY 2011, therefore, includes an approximate 0.1 percent decrease in payments because the estimated outlier portion of total payments is estimated to decrease from approximately 3.1 percent to 3 percent.
The impact of this outlier adjustment update (as shown in column 4 of Table 7) is to decrease estimated overall payments to IRFs by about 0.09 percent. We do not estimate that any group of IRFs will experience an increase in payments from this update. We estimate the largest decrease in payments to be a 0.41 percent decrease in estimated payments to rural IRFs in the Pacific region, which is due to the small number of IRFs in that region (5) and the high volume of outlier payments paid to those IRFs.
The adjusted market basket update to the IRF PPS payment rates is presented in column 5 of Table 7. In the aggregate the update would result in a net 2.25 percent increase in overall estimated payments to IRFs. This net increase reflects the estimated RPL market basket increase factor for FY 2011 of 2.5 percent, and the 0.25 percentage point reduction to the RPL market basket increase factor in accordance with sections 1886(j)(3)(C) and (D) of the Act.
In column 6 of Table 7, we present the effects of the budget neutral update of the wage index and labor-related share. The changes to the wage index and the labor-related share are discussed together because the wage index is applied to the labor-related share portion of payments, so the changes in the two have a combined effect on payments to providers. As discussed in section V.B of this notice, the labor-related share decreased from 75.779 percent in FY 2010 to 75.271 percent in FY 2011.
In the aggregate, since these updates to the wage index and the labor-related share are applied in a budget-neutral manner as required under section 1886(j)(6) of the Act, we do not estimate that these updates will affect overall estimated payments to IRFs. However, we estimate that these updates will have small distributional effects. For example, we estimate the largest increase in estimated payments from the update to the CBSA wage index and labor-related share to be a 0.94 percent increase for urban IRFs in the New England region. In addition, we estimate a 0.17 percent decrease in overall payments to rural IRFs, with the largest decrease in estimated payments of 1.22 percent for rural IRFs in the New England region.
In column 7 of Table 7, we present the effects of the budget neutral update of the CMG relative weights and average length of stay values. In the aggregate we do not estimate that these updates will affect overall estimated payments to IRFs. However, we estimate that these updates will have small distributional effects, with the largest decrease in payments as a result of these updates being a 0.30 percent decrease to rural IRFs in the Pacific region and the largest increase in payments as a result of these updates being a 0.20 percent increase to rural IRFs in the West North Central region.
Because we have determined that this notice would have a significant economic impact on IRFs and on a substantial number of small entities, we will discuss the alternative changes to the IRF PPS that we considered.
Section 1886(j)(3)(C) of the Act requires the Secretary to update the IRF PPS payment rates by an increase factor that reflects changes over time in the prices of an appropriate mix of goods and services included in the covered IRF services. Thus, we did not consider alternatives to updating payments using the estimated RPL market basket increase factor for FY 2011. However, as noted previously in this notice, sections 1886(j)(3)(C) and (D) of the Act require the Secretary to apply a 0.25 percentage point reduction to the market basket increase factor for FY 2011. Thus, in accordance with the recently amended section 1886(j)(3)(C) of the Act, we are updating IRF Federal prospective payments in this notice by 2.25 percent (which equals the 2.5 percent estimated RPL market basket increase factor for FY 2011 reduced by 0.25 percentage points, as required by sections 1886(f)(3)(C) and (D) of the Act).
We considered maintaining the existing CMG relative weights and average length of stay values for FY 2011. However, in light of recently available data and our desire to ensure that the CMG relative weights and average length of stay values are as reflective as possible of recent changes in IRF utilization and case mix, we believe that it is appropriate to update the CMG relative weights and average length of stay values at this time to ensure that IRF PPS payments continue to reflect as accurately as possible the current costs of care in IRFs.
We considered maintaining the existing outlier threshold amount for FY 2011 because updating the outlier threshold amount has an estimated negative effect on IRF payments and, therefore, on small entities. If we were to maintain the FY 2010 outlier threshold amount, more outlier cases would have qualified for the additional outlier payments in FY 2011. However, analysis of updated FY 2009 data indicates that estimated outlier payments would exceed 3 percent of total estimated payments for FY 2011 unless we updated the outlier threshold
As required by OMB Circular A-4 (available at
Overall, the estimated payments per discharge for IRFs in FY 2011 are projected to increase by 2.16 percent, compared with the revised estimated payments in FY 2010, as reflected in column 8 of Table 7. As noted previously, the revised FY 2010 estimated payments reflect the revised Federal prospective payment rates and outlier threshold amount that became effective for IRF discharges occurring on or after April 1, 2010, in accordance with sections 1886(j)(3)(C) and (D) of the Act, as described in sections V.A and VI.A of this notice. IRF payments per discharge are estimated to increase 2.17 percent in urban areas and 2.05 percent in rural areas, compared with the revised estimated FY 2010 payments. Payments to rehabilitation units in rural areas are estimated to increase by 2.03 percent per discharge, and payments to rehabilitation units in urban areas are estimated to increase by 2.20 percent per discharge. Payments to rehabilitation freestanding hospitals in rural and urban areas are estimated to increase 2.15 percent per discharge.
Overall, no IRFs are estimated to experience a net decrease in payments as a result of the updates in this notice. The largest payment increase is estimated at 3.19 percent for urban IRFs located in the New England region. This is due to the larger than average positive effect of the FY 2011 CBSA wage index and labor-related share updates for urban IRFs in this region.
In accordance with the provisions of Executive Order 12866, this Notice was reviewed by the Office of Management and Budget.
Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice with comment period.
This notice with comment period sets forth an update to the payment rates used under the prospective payment system for skilled nursing facilities for fiscal year 2011, and implements section 10325 of the Patient Protection and Affordable Care Act.
In commenting, please refer to file code CMS-1338-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
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Please allow sufficient time for mailed comments to be received before the close of the comment period.
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a. Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201.
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, please call telephone number (410) 786-7195 in advance to schedule your arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
To assist readers in referencing sections contained in this document, we are providing the following Table of Contents.
In addition, because of the many terms to which we refer by abbreviation in this notice, we are listing these abbreviations and their corresponding terms in alphabetical order below:
Annual updates to the prospective payment system (PPS) rates for skilled nursing facilities (SNFs) are required by section 1888(e) of the Social Security Act (the Act), as added by section 4432 of the Balanced Budget Act of 1997 (BBA, Pub. L. 105-33, enacted on August 5, 1997), and amended by the Medicare, Medicaid, and State Children's Health Insurance Program (SCHIP) Balanced Budget Refinement Act of 1999 (BBRA, Pub. L. 106-113, enacted on November 29, 1999), the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA, Pub. L. 106-554, enacted December 21, 2000), and the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA, Pub. L. 108-173, enacted on December 8, 2003). Our most recent annual update occurred in a final rule (74 FR 40288, August 11, 2009) that set forth updates to the SNF PPS payment rates for fiscal year (FY) 2010. We subsequently published a correction notice (74 FR 48865, September 25, 2009) with respect to those payment rate updates.
Section 4432 of the BBA amended section 1888 of the Act to provide for the implementation of a per diem PPS for SNFs, covering all costs (routine, ancillary, and capital-related) of covered SNF services furnished to beneficiaries under Part A of the Medicare program, effective for cost reporting periods beginning on or after July 1, 1998. In this notice, we update the per diem payment rates for SNFs for FY 2011. Major elements of the SNF PPS include:
•
•
•
•
•
Section 1888(e)(4)(H) of the Act requires that we provide for publication annually in the
1. The unadjusted Federal per diem rates to be applied to days of covered SNF services furnished during the upcoming FY.
2. The case-mix classification system to be applied with respect to these services during the upcoming FY.
3. The factors to be applied in making the area wage adjustment with respect to these services.
Along with other revisions discussed later in this preamble, this notice provides these required annual updates to the Federal rates.
There were several provisions in the BBRA that resulted in adjustments to the SNF PPS. We described these provisions in detail in the SNF PPS final rule for FY 2001 (65 FR 46770, July 31, 2000). In particular, section 101(a) of the BBRA provided for a temporary 20 percent increase in the per diem adjusted payment rates for 15 specified groups in the original, 44-group Resource Utilization Groups, version 3 (RUG-III) case-mix classification system. In accordance with section 101(c)(2) of the BBRA, this temporary payment adjustment expired on January 1, 2006, upon the implementation of a refined, 53-group version of the RUG-III system, RUG-53 (see section I.G.1. of this notice). We included further information on BBRA provisions that affected the SNF PPS in Program Memorandums A-99-53 and A-99-61 (December 1999).
Also, section 103 of the BBRA designated certain additional services for exclusion from the consolidated billing requirement, as discussed in section IV. of this notice. Further, for swing-bed hospitals with more than 49 (but less than 100) beds, section 408 of the BBRA provided for the repeal of certain statutory restrictions on length of stay and aggregate payment for patient days, effective with the end of the SNF PPS transition period described in section 1888(e)(2)(E) of the Act. In the final rule for FY 2002 (66 FR 39562, July 31, 2001), we made conforming changes to the regulations at § 413.114(d), effective for services furnished in cost reporting periods beginning on or after July 1, 2002, to reflect section 408 of the BBRA.
The BIPA also included several provisions that resulted in adjustments to the SNF PPS. We described these provisions in detail in the final rule for FY 2002 (66 FR 39562, July 31, 2001). In particular:
• Section 203 of the BIPA exempted CAH swing beds from the SNF PPS. We included further information on this provision in Program Memorandum A-01-09 (Change Request #1509), issued January 16, 2001, which is available online at
• Section 311 of the BIPA revised the statutory update formula for the SNF market basket, and also directed us to conduct a study of alternative case-mix classification systems for the SNF PPS. In 2006, we submitted a report to the Congress on this study, which is available online at
• Section 312 of the BIPA provided for a temporary increase of 16.66 percent in the nursing component of the case-mix adjusted Federal rate for services furnished on or after April 1, 2001, and before October 1, 2002; accordingly, this add-on is no longer in effect. This section also directed the Government Accountability Office (GAO) to conduct an audit of SNF nursing staff ratios and submit a report to the Congress on whether the temporary increase in the nursing component should be continued. The report (GAO-03-176), which GAO issued in November 2002, is available online at
• Section 313 of the BIPA repealed the consolidated billing requirement for services (other than physical therapy, occupational therapy, and speech-language pathology services) furnished to SNF residents during noncovered stays, effective January 1, 2001. (A more detailed discussion of this provision appears in section IV. of this notice.)
• Section 314 of the BIPA corrected an anomaly involving three of the RUGs that section 101(a) of the BBRA had designated to receive the temporary payment adjustment discussed above in section I.C. of this notice. (As noted previously, in accordance with section 101(c)(2) of the BBRA, this temporary payment adjustment expired upon the implementation of case-mix refinements on January 1, 2006.)
• Section 315 of the BIPA authorized us to establish a geographic reclassification procedure that is specific to SNFs, but only after collecting the data necessary to establish a SNF wage index that is based on wage data from nursing homes. To date, this has proven to be unfeasible due to the volatility of existing SNF wage data and the significant amount of resources that would be required to improve the quality of that data.
We included further information on several of the BIPA provisions in Program Memorandum A-01-08 (Change Request #1510), issued January 16, 2001, which is available online at
The MMA included a provision that resulted in a further adjustment to the SNF PPS. Specifically, section 511 of the MMA amended section 1888(e)(12) of the Act, to provide for a temporary increase of 128 percent in the PPS per diem payment for any SNF residents with Acquired Immune Deficiency Syndrome (AIDS), effective with services furnished on or after October 1, 2004. This special AIDS add-on was to remain in effect until “ * * * the
For the limited number of SNF residents that qualify for the AIDS add-on, implementation of this provision results in a significant increase in payment. For example, using FY 2008 data, we identified less than 3,300 SNF residents with a diagnosis code of 042 (Human Immunodeficiency Virus (HIV) Infection). For FY 2011, an urban facility with a resident with AIDS in hybrid RUG-III (HR-III) group “SSB” would have a case-mix adjusted payment of $318.73 (see Table 4B) before the application of the MMA adjustment. After an increase of 128 percent, this urban facility would receive a case-mix adjusted payment of approximately $726.70. Similarly, an urban facility with a resident with AIDS in RUG-IV group “HC2” would have a case-mix adjusted payment of $394.48 (see Table 4A) before the application of the MMA adjustment. After an increase of 128 percent, this urban facility would receive a case-mix adjusted payment of approximately $899.41.
In addition, section 410 of the MMA contained a provision that excluded from consolidated billing certain services furnished to SNF residents by rural health clinics (RHCs) and Federally Qualified Health Centers (FQHCs). (Further information on this provision appears in section IV. of this notice.)
Section 10325 of the ACA (Pub. L. 111-148, enacted on March 23, 2010) includes a self-implementing provision involving the SNF PPS. Section 10325 postpones the implementation of the RUG-IV case-mix classification system published in the FY 2010 SNF PPS final rule (74 FR 40288, August 11, 2009), requiring that the Secretary not implement the RUG-IV case-mix classification system before October 1, 2011. Notwithstanding this postponement of overall RUG-IV implementation, section 10325 further specifies that the Secretary is required to implement, effective October 1 2010, the changes related to concurrent therapy and the look-back period that were finalized as components of RUG-IV (see 74 FR 40315-19, 40322-24). Because these changes were already subject to notice and public comment and finalized in the FY 2010 SNF PPS final rule, we believe that this ACA requirement is largely self-implementing and requires no substantive exercise of discretion by the Secretary. In addition, section 10325 of the ACA specifies that version 3.0 of the Minimum Data Set (MDS 3.0) shall proceed as planned, with an implementation date of October 1, 2010 (see 74 FR 40342-43). The MDS is approved under OMB# 0938-0872. The MDS 3.0 RAI Manual and MDS 3.0 Item Set are scheduled to be published on the CMS Web site,
The statutory mandate to adopt RUG-IV's concurrent therapy and look-back revisions (along with MDS 3.0) prior to implementing the overall RUG-IV system itself will necessitate implementing those particular revisions within the framework of the existing RUG-53 case-mix classification system. While there is currently an existing grouper (the software program that uses assessment data to assign each SNF resident to the appropriate RUG) that utilizes RUG-53 and the MDS 2.0, as well as a revised grouper that utilizes RUG-IV and the MDS 3.0, no grouper currently exists that incorporates the particular combination of features mandated by the statute: The use of the new RUG-IV revisions on concurrent therapy and the look-back period as well as the MDS 3.0, but within the overall context of the existing RUG-53 system. Moreover, attempting to develop and implement such a modified grouper within the short timeframe available before the ACA provision's October 1, 2010 effective date would potentially cause significant disruption to providers, suppliers, and State agencies.
Accordingly, as we continue to build the payment infrastructure needed to incorporate the combination of features mandated by section 10325 of the ACA for FY 2011, we will apply, effective October 1, 2010, interim payment rates that reflect not only the use of MDS 3.0 but also the new RUG-IV system in its entirety as finalized in the FY 2010 SNF PPS final rule (74 FR 40288, August 11, 2009). As discussed above, the only grouper that currently exists that utilizes MDS 3.0 is the RUG-IV grouper. Once the necessary infrastructure is in place, we will then retroactively adjust claims to reflect a hybrid RUG-III (HR-III) system which incorporates RUG-IV's specific revisions on concurrent therapy and the look-back period within the framework of the existing RUG-53 system, along with the use of MDS 3.0. Tables 4 and 5 set forth both the RUG-IV rates that will be used on an interim basis effective October 1, 2010 and the HR-III rates that will apply once we build the infrastructure necessary to support this system. The FY 2011 rates will be based on the rates that were finalized for FY 2010, as modified to reflect the market basket adjustment, the forecast error adjustment, the applicable case-mix adjustment, and the parity adjustment (as discussed below).
We note that a parity adjustment was applied to the RUG-53 nursing case-mix weights when the RUG-III system was initially refined in 2006, in order to ensure that the implementation of the refinements would not cause any change in overall payment levels (70 FR 45031, August 4, 2005). A detailed discussion of the parity adjustment in the specific context of the RUG-IV payment rates appears in the FY 2010 SNF PPS proposed rule (74 FR 22236-38, May 12, 2009) and final rule (74 FR 40338-39, August 11, 2009). Consistent with our policy set forth in the FY 2006 SNF PPS final rule (70 FR 45031) when we transitioned from the RUG-III 44 group model to the RUG-53 model, and in the FY 2010 SNF PPS final rule (74 FR 40338-39) when we finalized the transition from RUG-53 to RUG-IV, in calculating the rates under the HR-III model, we will apply a parity adjustment to the nursing case-mix weights under the HR-III system to ensure parity between overall payments under the RUG-53 model currently in effect and anticipated payments under the HR-III system required by the ACA. As discussed in section II.B.2 of this notice, we are calculating and applying this parity adjustment using the same methodology finalized in both the FY 2006 SNF PPS final rule and the FY 2010 SNF PPS final rule.
Accordingly, as discussed above, effective October 1, 2010, on an interim basis, we will implement and pay claims under the RUG-IV system that was finalized in the FY 2010 SNF PPS final rule, until we build the payment infrastructure necessary to support the HR-III system required by the ACA. Once that infrastructure is in place, we will then retroactively adjust claims back to October 1, 2010 as necessary to implement the rates effective under HR-III. In this notice, we also invite public comment on our implementation of section 10325 of the ACA.
As discussed above, we will implement the MDS 3.0 (including the MDS 3.0 swing bed assessment (see 74 FR 40356-57)) effective October 1, 2010 as specified in the FY 2010 SNF PPS final rule. We will also implement effective October 1, 2010, all other non-RUG-IV changes finalized in the FY 2010 SNF PPS final rule for implementation effective FY 2011, including without limitation revisions to certain therapy reporting and assessment procedures effective with the MDS 3.0 (74 FR 40346-49) (that is, updated reporting procedures for short-stay patients, implementation of an optional, abbreviated start-of-therapy OMRA, a revised Assessment Reference Date (ARD) requirement for the end-of-therapy OMRA, and an abbreviated end-of-therapy OMRA).
We implemented the Medicare SNF PPS effective with cost reporting periods beginning on or after July 1, 1998. This methodology uses prospective, case-mix adjusted per diem payment rates applicable to all covered SNF services. These payment rates cover all costs of furnishing covered skilled nursing services (routine, ancillary, and capital-related costs) other than costs associated with approved educational activities and bad debts. Covered SNF services include post-hospital services for which benefits are provided under Part A, as well as those items and services (other than physician and certain other services specifically excluded under the BBA) which, before July 1, 1998, had been paid under Part B but furnished to Medicare beneficiaries in an SNF during a covered Part A stay. A comprehensive discussion of these provisions appears in the May 12, 1998 interim final rule (63 FR 26252).
The PPS uses per diem Federal payment rates based on mean SNF costs in a base year (FY 1995) updated for inflation to the first effective period of the PPS. We developed the Federal payment rates using allowable costs from hospital-based and freestanding SNF cost reports for reporting periods beginning in FY 1995. The data used in developing the Federal rates also incorporated an estimate of the amounts that would be payable under Part B for covered SNF services furnished to individuals during the course of a covered Part A stay in an SNF.
In developing the rates for the initial period, we updated costs to the first effective year of the PPS (the 15-month period beginning July 1, 1998) using an SNF market basket index, and then standardized for the costs of facility differences in case mix and for geographic variations in wages. In compiling the database used to compute the Federal payment rates, we excluded those providers that received new provider exemptions from the routine cost limits, as well as costs related to payments for exceptions to the routine cost limits. Using the formula that the BBA prescribed, we set the Federal rates at a level equal to the weighted mean of freestanding costs plus 50 percent of the difference between the freestanding mean and weighted mean of all SNF costs (hospital-based and freestanding) combined. We computed and applied separately the payment rates for facilities located in urban and rural areas. In addition, we adjusted the portion of the Federal rate attributable to wage-related costs by a wage index.
The Federal rate also incorporates adjustments to account for facility case-mix, using a classification system that accounts for the relative resource utilization of different patient types. The RUG-IV classification system uses beneficiary assessment data from the MDS 3.0 completed by SNFs to assign beneficiaries to one of 66 RUG-IV groups. The original RUG-III case-mix classification system used beneficiary assessment data from the MDS, version 2.0 (MDS 2.0) completed by SNFs to assign beneficiaries to one of 44 RUG-III groups. Then, under incremental refinements that became effective on January 1, 2006, we added nine new groups—comprising a new Rehabilitation plus Extensive Services category—at the top of the RUG-III hierarchy. The May 12, 1998 interim final rule (63 FR 26252) included a detailed description of the original 44-group RUG-III case-mix classification system. A comprehensive description of the refined RUG-53 system appeared in the proposed and final rules for FY 2006 (70 FR 29070, May 19, 2005, and 70 FR 45026, August 4, 2005), and a detailed description of the 66-group RUG-IV system appeared in the proposed and final rules for FY 2010 (74 FR 22208, May 12, 2009, and 74 FR 40288, August 11, 2009).
Further, in accordance with section 1888(e)(4)(E)(ii)(IV) of the Act, the Federal rates in this notice reflect an update to the rates that we published in the final rule for FY 2010 (74 FR 40288, August 11, 2009) and the associated correction notice (74 FR 48865, September 25, 2009), equal to the full change in the SNF market basket index, adjusted by the forecast error correction. A more detailed discussion of the SNF market basket index and related issues appears in sections I.F.2. and III. of this notice.
Section 1888(e)(5) of the Act requires us to establish a SNF market basket index that reflects changes over time in the prices of an appropriate mix of goods and services included in covered SNF services. We use the SNF market basket index to update the Federal rates on an annual basis. In the SNF PPS final rule for FY 2008 (72 FR 43425 through 43430, August 3, 2007), we revised and rebased the market basket, which included updating the base year from FY 1997 to FY 2004. The proposed FY 2011 market basket increase is 2.3 percent, which is based on IHS Global Insight, Inc. second quarter 2010 forecast with historical data through first quarter 2010.
In addition, as explained in the final rule for FY 2004 (66 FR 46058, August 4, 2003) and in section III.B. of this notice, the annual update of the payment rates includes, as appropriate, an adjustment to account for market basket forecast error. As described in the final rule for FY 2008, the threshold percentage that serves to trigger an adjustment to account for market basket forecast error is 0.5 percentage point effective for FY 2008 and subsequent years. This adjustment takes into account the forecast error from the most recently available FY for which there is final data, and applies whenever the difference between the forecasted and actual change in the market basket exceeds a 0.5 percentage point threshold. For FY 2009 (the most recently available FY for which there is final data), the estimated increase in the market basket index was 3.4 percentage points, while the actual increase was 2.8 percentage points, resulting in the actual increase being 0.6 percentage point lower than the estimated increase. Accordingly, as the difference between the estimated and actual amount of change exceeds the 0.5 percentage point threshold, the payment rates for FY 2011 include a negative 0.6 percentage point forecast error adjustment. As we stated in the final rule for FY 2004 that first promulgated the forecast error adjustment (68 FR 46058, August 4, 2003), the adjustment will “* * * reflect both upward and downward adjustments, as appropriate.” Table 1 shows the forecasted and actual market basket amounts for FY 2009.
This notice sets forth a schedule of Federal prospective payment rates applicable to Medicare Part A SNF services beginning October 1, 2010. The schedule incorporates per diem Federal rates that provide Part A payment for almost all costs of services furnished to a beneficiary in a SNF during a Medicare-covered stay.
In accordance with section 1888(e)(2)(B) of the Act, the Federal rates apply to all costs (routine, ancillary, and capital-related) of covered SNF services other than costs associated with approved educational activities as defined in § 413.85. Under section 1888(e)(2)(A)(i) of the Act, covered SNF services include post-hospital SNF services for which benefits are provided under Part A (the hospital insurance program), as well as all items and services (other than those services excluded by statute) that, before July 1, 1998, were paid under Part B (the supplementary medical insurance program) but furnished to Medicare beneficiaries in a SNF during a Part A covered stay. (These excluded service categories are discussed in greater detail in section V.B.2. of the May 12, 1998 interim final rule (63 FR 26295 through 26297)).
The FY 2011 rates reflect an update using the latest market basket index, and adjusting for the FY 2009 forecast error correction. The FY 2011 market basket increase factor is 2.3 percent which, when combined with a negative 0.6 percentage point forecast error adjustment for FY 2009, results in a net FY 2011 update of 1.7 percent. A complete description of the multi-step process used to calculate Federal rates initially appeared in the May 12, 1998 interim final rule (63 FR 26252), as further revised in subsequent rules. As explained above in section I.C of this notice, under section 101(c)(2) of the BBRA, the previous temporary increases in the per diem adjusted payment rates for certain designated RUGs (as specified in section 101(a) of the BBRA and section 314 of the BIPA) are no longer in effect due to the implementation of case-mix refinements as of January 1, 2006. However, the temporary increase of 128 percent in the per diem adjusted payment rates for SNF residents with AIDS, enacted by section 511 of the MMA, remains in effect.
We used the SNF market basket to adjust each per diem component of the Federal rates forward to reflect cost increases occurring between the midpoint of the Federal FY beginning October 1, 2009, and ending September 30, 2010, and the midpoint of the Federal FY beginning October 1, 2010, and ending September 30, 2011, to which the payment rates apply. In accordance with section 1888(e)(4)(E)(ii)(IV) of the Act, we update the payment rates for FY 2011 by a factor equal to the full market basket index percentage increase. As explained in section I.G.2 of this notice, we adjust the market basket index by the forecast error from the most recently available FY for which there is final data and apply this adjustment whenever the difference between the forecasted and actual change in the market basket exceeds a 0.5 percentage point threshold. We further adjust the rates by a wage index budget neutrality factor, described later in this section. Tables 2 and 3 reflect the updated components of the unadjusted Federal rates for FY 2011, prior to adjustment for case-mix.
Section 1888(e)(4)(G)(i) of the Act requires the Secretary to make an adjustment to account for case-mix. The statute specifies that the adjustment is to reflect both a resident classification system that the Secretary establishes to account for the relative resource use of different patient types, as well as resident assessment and other data that the Secretary considers appropriate. In first implementing the SNF PPS (63 FR 26252, May 12, 1998), we developed the RUG-III case-mix classification system, which tied the amount of payment to resident resource use in combination with resident characteristic information. Staff time measurement (STM) studies conducted in 1990, 1995, and 1997 provided information on resource use (time spent by staff members on residents) and resident characteristics that enabled us not only to establish RUG-III, but also to create case-mix indexes (CMIs).
Although the establishment of the SNF PPS did not change Medicare's fundamental requirements for SNF coverage, there is a correlation between level of care and provider payment. One of the elements affecting the SNF PPS per diem rates is the case-mix adjustment derived from a classification system based on comprehensive resident assessments using the MDS. Case-mix classification is based, in part, on the beneficiary's need for skilled nursing care and therapy. The case-mix classification system uses clinical data from the MDS, and wage-adjusted staff time measurement data, to assign a case-mix group to each patient record that is then used to calculate a per diem payment under the SNF PPS. The original RUG-III grouper logic was based on clinical data collected in 1990, 1995, and 1997. As discussed in the SNF PPS proposed rule for FY 2010 (74 FR 22208, May 12, 2009), we subsequently conducted a multi-year data collection and analysis under the Staff Time and Resource Intensity Verification (STRIVE) project to update the case-mix classification system for FY 2011. The resulting RUG-IV case-mix classification system reflected the data collected in 2006-2007 during the STRIVE project, and was finalized in the FY 2010 SNF PPS final rule (74 FR 40288, August 11, 2009) to take effect in FY 2011 concurrently with an updated new resident assessment instrument, the MDS 3.0, which collects the clinical data used for case-mix classification under RUG-IV.
Under the BBA, each update of the SNF PPS payment rates must include the case-mix classification methodology applicable for the coming Federal FY. As indicated in section I.F of this notice, the payment rates set forth herein reflect the use of the HR-III case-mix classification system from October 1, 2010 through September 30, 2011. However, due to time constraints in preparing the HR-III grouper, the 66-group RUG-IV case-mix classification system that we discussed in detail in the proposed and final rules for FY 2010 will be used beginning October 1, 2010. Once the HR-III Grouper is ready for implementation, payments will be retroactively adjusted to the October 1, 2010 date.
Consistent with the policy finalized in the FY 2010 SNF PPS final rule (74 FR 40338-39), the updated RUG-IV rates set forth in Tables 4A and 5A reflect an upward adjustment to the nursing CMIs to achieve parity in overall payments between the existing RUG—53 model and the RUG-IV model. As explained in the FY 2010 SNF PPS final rule, we applied an upward adjustment of 59.4 percent to the RUG-IV nursing CMIs to achieve parity between the RUG-53 and RUG-IV models, based on an analysis using FY 2008 claims data. However, after the FY 2010 SNF PPS final rule was published, final FY 2009 claims data became available. As we stated in the FY 2010 SNF PPS final rule (74 FR 40339), in the absence of actual RUG-IV utilization data, we believe the most recent final claims data are the best source available to estimate RUG-IV utilization for FY 2011, as they are closest to the FY 2011 timeframe. Thus, we updated our analysis described in the FY 2010 SNF PPS proposed and final rules using final FY 2009 claims data to enhance the accuracy of our calculation of the adjustment necessary to achieve parity between the RUG-53 model and the RUG-IV model. Using the methodology finalized in the FY 2010 SNF PPS final rule with updated FY 2009 claims data, the adjustment to the RUG-IV nursing CMIs necessary to achieve parity is an upward adjustment of 61 percent.
Consistent with this policy, and using the same methodology finalized in the FY 2006 SNF PPS final rule and the FY 2010 SNF PPS final rule, we have calculated and applied a parity adjustment to the HR-III nursing CMIs so that overall payments under the HR-III case-mix classification system maintain parity with overall payments under the existing RUG-53 model. We used FY 2009 claims data, the most recent final claims data available, to compare the distribution of payment days by RUG category in the RUG-53 model with anticipated payments by RUG category in the new HR-III model. Our projections of future utilization patterns under the HR-III system indicated that the HR-III system would
We list the case-mix adjusted RUG-IV payment rates separately for urban and rural SNFs in Tables 4A and 5A, with the corresponding case-mix values which reflect the parity adjustment discussed above. Similarly, the HR-III case-mix adjusted payment rates (reflecting the parity adjustment) are listed on Tables 4B and 5B. These tables do not reflect the AIDS add-on enacted by section 511 of the MMA, which we apply only after making all other adjustments (wage and case-mix).
Section 1888(e)(4)(G)(ii) of the Act requires that we adjust the Federal rates to account for differences in area wage levels, using a wage index that we find appropriate. Since the inception of a PPS for SNFs, we have used hospital wage data in developing a wage index to be applied to SNFs. We are maintaining that practice for FY 2011, as we continue to believe that in the absence of SNF-specific wage data, using the hospital inpatient wage index is appropriate and reasonable for the SNF PPS. As explained in the update notice for FY 2005 (69 FR 45786, July 30, 2004), the SNF PPS does not use the hospital area wage index's occupational mix adjustment, as this adjustment serves specifically to define the occupational categories more clearly in a hospital setting; moreover, the collection of the occupational wage data also excludes any wage data related to SNFs. Therefore, we believe that using the updated wage data exclusive of the occupational mix adjustment continues to be appropriate for SNF payments.
Finally, we continue to use the same methodology discussed in the SNF PPS final rule for FY 2008 (72 FR 43423) to address those geographic areas in which there are no hospitals and, thus, no hospital wage index data on which to base the calculation of the FY 2011 SNF PPS wage index. For rural geographic areas that do not have hospitals and, therefore, lack hospital wage data on which to base an area wage adjustment, we use the average wage index from all contiguous Core-Based Statistical Areas (CBSAs) as a reasonable proxy. This methodology is used to construct the wage index for rural Massachusetts. However, we do not apply this methodology to rural Puerto Rico due to the distinct economic circumstances that exist there, but instead continue using the most recent wage index previously available for that area. For urban areas without specific hospital wage index data, we use the average wage indexes of all of the urban areas
To calculate the SNF PPS wage index adjustment, we apply the wage index adjustment to the labor-related portion of the Federal rate, which is 69.311 percent of the total rate. This percentage reflects the labor-related relative importance for FY 2011, using the revised and rebased FY 2004-based market basket. The labor-related relative importance for FY 2010 was 69.840, as shown in Table 9. We calculate the labor-related relative importance from the SNF market basket, and it approximates the labor-related portion of the total costs after taking into account historical and projected price changes between the base year and FY 2011. The price proxies that move the different cost categories in the market basket do not necessarily change at the same rate, and the relative importance captures these changes. Accordingly, the relative importance figure more closely reflects the cost share weights for FY 2011 than the base year weights from the SNF market basket.
We calculate the labor-related relative importance for FY 2011 in four steps. First, we compute the FY 2011 price index level for the total market basket and each cost category of the market basket. Second, we calculate a ratio for each cost category by dividing the FY 2011 price index level for that cost category by the total market basket price index level. Third, we determine the FY 2011 relative importance for each cost category by multiplying this ratio by the base year (FY 2004) weight. Finally, we add the FY 2011 relative importance for each of the labor-related cost categories (wages and salaries, employee benefits, non-medical professional fees, labor-intensive services, and a portion of capital-related expenses) to produce the FY 2011 labor-related relative importance. Tables 6A and 7A below show the Federal rates for RUG-IV by labor-related and non-labor-related components. Similarly, Tables 6B and 7B show the Federal rates for HR-III.
Section 1888(e)(4)(G)(ii) of the Act also requires that we apply this wage index in a manner that does not result in aggregate payments that are greater or less than would otherwise be made in the absence of the wage adjustment. For FY 2011 (Federal rates effective October 1, 2010), we apply an adjustment to fulfill the budget neutrality requirement. We meet this requirement by multiplying each of the components of the unadjusted Federal rates by a budget neutrality factor equal to the ratio of the weighted average wage adjustment factor for FY 2010 to the weighted average wage adjustment factor for FY 2011. For this calculation, we use the same 2009 claims utilization data for both the numerator and denominator of this ratio. We define the wage adjustment factor used in this calculation as the labor share of the rate component multiplied by the wage index plus the non-labor share of the rate component. The budget neutrality factor for this year is 0.9997. The wage index applicable to FY 2011 is set forth in Tables A and B, which appear in the Addendum of this notice.
In the SNF PPS final rule for FY 2006 (70 FR 45026, August 4, 2005), we adopted the changes discussed in the Office of Management and Budget (OMB) Bulletin No. 03-04 (June 6, 2003), available online at
In adopting the OMB Core-Based Statistical Area (CBSA) geographic designations, we provided for a 1-year transition with a blended wage index for all providers. For FY 2006, the wage index for each provider consisted of a blend of 50 percent of the FY 2006 MSA-based wage index and 50 percent of the FY 2006 CBSA-based wage index (both using FY 2002 hospital data). We referred to the blended wage index as the FY 2006 SNF PPS transition wage index. As discussed in the SNF PPS final rule for FY 2006 (70 FR 45041), subsequent to the expiration of this 1-year transition on September 30, 2006, we used the full CBSA-based wage index values, as now presented in Tables A and B in the Addendum of this notice.
In accordance with section 1888(e)(4)(E) of the Act, as amended by section 311 of the BIPA, the payment rates in this notice reflect an update equal to the full SNF market basket, estimated at 2.3 percentage points. In addition, as discussed in sections I.G.2
As discussed in § 413.345, we include in each update of the Federal payment rates in the
A beneficiary assigned to any of the lower 14 RUG-IV groups is not automatically classified as either meeting or not meeting the definition, but instead receives an individual level of care determination using the existing administrative criteria. This presumption recognizes the strong likelihood that beneficiaries assigned to one of the upper 52 RUG-IV groups during the immediate post-hospital period require a covered level of care, which would be less likely for those beneficiaries assigned to one of the lower 14 RUG-IV groups.
In this notice, we designate the upper 52 RUG-IV groups for purposes of this administrative presumption, consisting of all groups encompassed by the following RUG-IV categories:
• Rehabilitation plus Extensive Services;
• Ultra High Rehabilitation;
• Very High Rehabilitation;
• High Rehabilitation;
• Medium Rehabilitation;
• Low Rehabilitation;
• Extensive Services;
• Special Care High;
• Special Care Low; and,
• Clinically Complex.
By contrast, under the HR-III system discussed in section I.F of this notice, we will revert to the 53-group classification structure of the previous, RUG-53 case-mix classification system. Under that structure, as discussed in section III.B.5 of the FY 2010 SNF PPS final rule (74 FR 40304, August 11, 2009), the administrative level-of-care presumption applies to the upper 35 groups (as encompassed by the Rehabilitation plus Extensive Services, Ultra High Rehabilitation, Very High Rehabilitation, High Rehabilitation, Medium Rehabilitation, Low Rehabilitation, Extensive Services, Special Care, and Clinically Complex categories), while it does not apply to the lower 18 groups.
Using the hypothetical SNF XYZ described in Tables 8A and 8B below, the following shows the adjustments made to the Federal per diem rate to compute the provider's actual per diem PPS payment, for RUG-IV and HR-III, respectively. SNF XYZ's 12-month cost reporting period begins October 1, 2010. SNF XYZ's total PPS payment would equal $41,979 for RUG-IV and $36,517 for HR-III, respectively. We derive the Labor and Non-labor columns from Table 6A for RUG-IV and Table 6B for HR-III.
Section 1888(e)(5)(A) of the Act requires us to establish a SNF market basket index (input price index), that reflects changes over time in the prices of an appropriate mix of goods and services included in the SNF PPS. This notice incorporates the latest available projections of the SNF market basket index. Accordingly, we have developed a SNF market basket index that encompasses the most commonly used cost categories for SNF routine services, ancillary services, and capital-related expenses.
Each year, we calculate a revised labor-related share based on the relative importance of labor-related cost categories in the input price index. Table 9 below summarizes the updated labor-related share for FY 2011.
Section 1888(e)(5)(B) of the Act defines the SNF market basket percentage as the percentage change in the SNF market basket index from the average of the previous FY to the average of the current FY. For the Federal rates established in this notice, we use the percentage increase in the SNF market basket index to compute the update factor for FY 2011. This is based on the IHS Global Insight, Inc. (formerly DRI-WEFA) second quarter 2010 forecast (with historical data through the first quarter 2010) of the FY 2011 percentage increase in the FY 2004-based SNF market basket index for routine, ancillary, and capital-related expenses, to compute the update factor in this notice. Finally, as discussed in section I.A. of this notice, we no longer compute update factors to adjust a facility-specific portion of the SNF PPS rates, because the initial three-phase transition period from facility-specific to full Federal rates that started with cost reporting periods beginning in July 1998 has expired.
As discussed in the June 10, 2003, supplemental proposed rule (68 FR 34768) and finalized in the August 4, 2003, final rule (68 FR 46057-59), the regulations at § 413.337(d)(2) provide for an adjustment to account for market basket forecast error. The initial adjustment applied to the update of the FY 2003 rate for FY 2004, and took into account the cumulative forecast error for the period from FY 2000 through FY 2002, resulting in an increase of 3.26 percent. Subsequent adjustments in succeeding FYs take into account the forecast error from the most recently available FY for which there is final data, and apply whenever the difference between the forecasted and actual change in the market basket exceeds a specified threshold. We originally used a 0.25 percentage point threshold for this purpose; however, for the reasons specified in the FY 2008 SNF PPS final rule (72 FR 43425, August 3, 2007), we adopted a 0.5 percentage point threshold effective with FY 2008. As discussed previously in section I.G.2. of this notice, as the difference between the estimated and actual amounts of increase in the market basket index for FY 2009 (the most recently available FY for which there is final data) exceeds the 0.5 percentage point threshold, the payment rates for FY 2011 include a forecast error adjustment.
Section 1888(e)(4)(E)(ii)(IV) of the Act requires that the update factor used to establish the FY 2011 Federal rates be at a level equal to the full market basket percentage change. Accordingly, to establish the update factor, we determined the total growth from the average market basket level for the period of October 1, 2009 through September 30, 2010 to the average market basket level for the period of October 1, 2010 through September 30, 2011. Using this process, the market basket update factor for FY 2011 SNF PPS Federal rates is 2.3 percent, adjusted by the negative 0.6 percentage point forecast error adjustment, for a net update of 1.7 percent for FY 2011. We used this update factor to compute the SNF PPS rate shown in Tables 2 and 3.
Section 4432(b) of the BBA established a consolidated billing requirement that places the Medicare billing responsibility for virtually all of the services that the SNF's residents receive with the SNF, except for a small number of services that the statute specifically identifies as being excluded from this provision. As noted previously in section I. of this notice, subsequent legislation enacted a number of modifications in the consolidated billing provision.
Specifically, section 103 of the BBRA amended this provision by further excluding a number of individual “high-cost, low-probability” services, identified by the Healthcare Common Procedure Coding System (HCPCS) codes, within several broader categories (chemotherapy and its administration, radioisotope services, and customized prosthetic devices) that otherwise remained subject to the provision. We discuss this BBRA amendment in greater detail in the proposed and final rules for FY 2001 (65 FR 19231 through 19232, April 10, 2000, and 65 FR 46790 through 46795, July 31, 2000), as well as in Program Memorandum AB-00-18 (Change Request #1070), issued March 2000, which is available online at
Section 313 of the BIPA further amended this provision by repealing its Part B aspect; that is, its applicability to services furnished to a resident during a SNF stay that Medicare Part A does not cover. (However, physical therapy, occupational therapy, and speech-language pathology services remain subject to consolidated billing, regardless of whether the resident who receives these services is in a covered Part A stay.) We discuss this BIPA amendment in greater detail in the proposed and final rules for FY 2002 (66 FR 24020 through 24021, May 10, 2001,
In addition, section 410 of the MMA amended this provision by excluding certain practitioner and other services furnished to SNF residents by RHCs and FQHCs. We discuss this MMA amendment in greater detail in the update notice for FY 2005 (69 FR 45818 through 45819, July 30, 2004), as well as in Program Transmittal #390 (Change Request #3575), issued December 10, 2004, which is available online at
Further, while not substantively revising the consolidated billing requirement itself, a related provision was enacted in the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA, Pub. L. 110-275). Specifically, section 149 of MIPPA amended section 1834(m)(4)(C)(ii) of the Act to add subclause (VII), which adds SNFs (as defined in section 1819(a) of the Act) to the list of entities that can serve as a telehealth “originating site” (that is, the location at which an eligible individual can receive, via a telecommunications system, services of a physician or other practitioner who is located elsewhere at a “distant site”).
As explained in the Medicare Physician Fee Schedule (PFS) final rule for Calendar Year (CY) 2009 (73 FR 69726, 69879, November 19, 2008), a telehealth originating site receives a facility fee which is always separately payable under Part B outside of any other payment methodology. Section 149(b) of MIPPA amended section 1888(e)(2)(A)(ii) of the Act to exclude telehealth services furnished under section 1834(m)(4)(C)(ii)(VII) of the Act from the definition of “covered skilled nursing facility services” that are paid under the SNF PPS. Thus, a SNF “ * * * can receive separate payment for a telehealth originating site facility fee even in those instances where it also receives a bundled per diem payment under the SNF PPS for a resident's covered Part A stay ” (73 FR 69881). By contrast, under section 1834(m)(2)(A) of the Act, a telehealth distant site service is payable under Part B to an eligible physician or practitioner only to the same extent that it would have been so payable if furnished without the use of a telecommunications system. Thus, as explained in the CY 2009 Physician Fee Schedule final rule (73 FR 69726), eligible distant site physicians or practitioners can receive payment for a telehealth service that they furnish—
* * * only if the service is separately payable under the PFS when furnished in a face-to-face encounter at that location. For example, we pay distant site physicians or practitioners for furnishing services via telehealth only if such services are not included in a bundled payment to the facility that serves as the originating site (73 FR 69880).
This means that in those situations where a SNF serves as the telehealth originating site, the distant site professional services would be separately payable under Part B only to the extent that they are not already included in the SNF PPS bundled per diem payment and subject to consolidated billing. Thus, for a type of practitioner whose services are not otherwise excluded from consolidated billing when furnished during a face-to-face encounter, the use of a telehealth distant site would not serve to unbundle those services. In fact, consolidated billing does exclude the professional services of physicians, along with those of most of the other types of telehealth practitioners that the law specifies at section 1842(b)(18)(C) of the Act, that is, physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse midwives, and clinical psychologists (see section 1888(e)(2)(A)(ii) of the Act and 42 CFR 411.15(p)(2)). However, the services of clinical social workers, registered dietitians and nutrition professionals remain subject to consolidated billing when furnished to a SNF's Part A resident and, thus, cannot qualify for separate Part B payment as telehealth distant site services in this situation. Additional information on this provision appears in Program Transmittal #1635 (Change Request #6215), issued November 14, 2008, which is available online at
In accordance with section 1888(e)(7) of the Act, as amended by section 203 of the BIPA, Part A pays CAHs on a reasonable cost basis for SNF services furnished under a swing-bed agreement. However, effective with cost reporting periods beginning on or after July 1, 2002, the swing-bed services of non-CAH rural hospitals are paid under the SNF PPS. As explained in the final rule for FY 2002 (66 FR 39562, July 31, 2001), we selected this effective date consistent with the statutory provision to integrate swing-bed rural hospitals into the SNF PPS by the end of the SNF transition period, June 30, 2002.
Accordingly, all non-CAH swing-bed rural hospitals have come under the SNF PPS as of June 30, 2003. Therefore, all rates and wage indexes outlined in earlier sections of this notice for the SNF PPS also apply to all non-CAH swing-bed rural hospitals. A complete discussion of assessment schedules, the MDS and the transmission software (RAVEN-SB for Swing Beds) appears in the final rule for FY 2002 (66 FR 39562, July 31, 2001) and in the final rule for FY 2010 (74 FR 40288, August 11, 2009). As finalized in the FY 2010 SNF PPS final rule (74 FR 40356-57), effective October 1, 2010, non-CAH swing-bed rural hospitals will be required to complete an MDS 3.0 swing-bed assessment which is limited to the required demographic, payment, and quality items. The latest changes in the MDS for swing-bed rural hospitals appear on the SNF PPS Web site,
The information collection requirements referenced in this notice with comment period are approved under OMB#'s 0938-0739 and 0938-0872.
Because of the large number of public comments we normally receive on
We have examined the impacts of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), the Regulatory Flexibility Act (September 19, 1980, RFA, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize
The update set forth in this notice applies to payments in FY 2011. Accordingly, the analysis that follows describes the impact of each system on an annual basis. In accordance with the requirements of the Act, we will publish a notice for each subsequent FY that will provide for an update to the payment rates and include an associated impact analysis.
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities as that term is used in the RFA includes small businesses, nonprofit organizations, and small government jurisdictions. Most SNFs and most other providers and suppliers are small entities, either by their nonprofit status or by having revenues of $13.5 million or less in any 1 year. For purposes of the RFA, approximately 51 percent of SNFs are considered small businesses according to the Small Business Administration's latest size standards, with total revenues of $13.5 million or less in any 1 year. (For details, see the Small Business Administration's final rule that sets forth standards for health care industries, at 65 FR 69432, November 17, 2000). Individuals and States are not included in the definition of a small entity. In addition, approximately 29 percent of SNFs are nonprofit organizations.
This notice updates the SNF PPS rates published in the final rule for FY 2010 (74 FR 40288, August 11, 2009) and the associated correction notice (74 FR 48865, September 25, 2009), thereby increasing net payments by an estimated $542 million. As indicated in Tables 10A and 10B, the effect on facilities will be an aggregate positive impact of 1.7 percent. We note that some individual providers may experience larger increases in payments than others due to the distributional impact of the FY 2011 wage indexes and the degree of Medicare utilization.
Guidance issued by the Department of Health and Human Services on the proper assessment of the impact on small entities in rulemakings, utilizes a revenue impact of 3 to 5 percent as a significance threshold under the RFA. While this notice is considered economically significant, its relative impact on SNFs overall is small because Medicare is a relatively minor payer source for nursing home care. We estimate that Medicare covers approximately 10 percent of service days, and approximately 20 percent of payments. However, the distribution of days and payments is highly variable, with the majority of SNFs having significantly lower Medicare utilization. As indicated in Tables 10A and 10B, the effect on facilities is projected to be an aggregate positive impact of 1.7 percent. As the overall impact is positive on the industry as a whole, and on small entities specifically, the Secretary has determined that this notice would not have a significant impact on a substantial number of small entities. Therefore, in view of the positive economic impact on small entities, it is not necessary to consider regulatory alternatives.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. The notice will affect small rural hospitals that (a) furnish SNF services under a swing-bed agreement or (b) have a hospital-based SNF. We anticipate that the impact on small rural hospitals will be similar to the impact on SNF providers overall. Therefore, the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2010, that threshold is approximately $135 million. This notice would not impose spending costs on State, local, or tribal governments in the aggregate, or by the private sector, of $135 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates regulations that impose substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This notice would have no substantial direct effect on State and local governments, preempt State law, or otherwise have Federalism implications.
This notice sets forth updates of the SNF PPS rates contained in the final rule for FY 2010 (74 FR 40288, August 11, 2009) and the associated correction notice (74 FR 48865, September 25, 2009). Based on the above, we estimate the FY 2011 impact would be a net increase of $542 million on payments to SNFs. The impact analysis of this notice represents the projected effects of the changes in the SNF PPS from FY 2010 to FY 2011. We assess the effects by estimating payments while holding all other payment-related variables constant. Although the best data available is utilized, there is no attempt to predict behavioral responses to these changes, or to make adjustments for future changes in such variables as days or case-mix.
Certain events may occur to limit the scope or accuracy of our impact analysis, as this analysis is future-oriented and, thus, very susceptible to forecasting errors due to certain events that may occur within the assessed impact time period. Some examples of possible events may include newly legislated general Medicare program funding changes by the Congress, or changes specifically related to SNFs. In addition, changes to the Medicare program may continue to be made as a result of previously enacted legislation, or new statutory provisions. Although these changes may not be specific to the SNF PPS, the nature of the Medicare program is that the changes may interact and, thus, the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon SNFs.
In accordance with section 1888(e)(4)(E) of the Act, we update the payment rates for FY 2010 by a factor equal to the full market basket index percentage increase adjusted by the FY 2009 forecast error adjustment to
The FY 2011 impacts appear in Tables 10A and 10B. The breakdown of the various categories of data in the table follows.
The first column shows the breakdown of all SNFs by urban or rural status, hospital-based or freestanding status, and census region.
The first row of figures in the first column describes the estimated effects of the various changes on all facilities. The next six rows show the effects on facilities split by hospital-based, freestanding, urban, and rural categories. The urban and rural designations are based on the location of the facility under the CBSA designation. The next twenty-two rows show the effects on urban versus rural status by census region.
The second column in the table shows the number of facilities in the impact database.
The third column of the table shows the effect of the annual update to the wage index. This represents the effect of using the most recent wage data available. The total impact of this change is zero percent; however, there are distributional effects of the change.
The fourth column shows the distributional effect due to the RUG-IV and HR-III classification systems. Though the aggregate impact shows no change in total payments, it is estimated that some facilities will experience payment increases while others experience payment decreases due to Medicare utilization under RUG-IV in Table 10A, and in HR-III in Table 10B. For example, in Table 10A under RUG-IV, providers in the urban Pacific region only show increases of 0.1 percent, while providers in the urban Mountain region show a decrease of 0.8 percent. Similarly, in Table 10B under HR-III, providers in the urban East South Central region only show increases of 0.3 percent, while providers in the urban South Atlantic region show a decrease of 0.9 percent.
The fifth column shows the effect of all of the changes on the FY 2011 payments. The update of 1.7 percent, consisting of the market basket increase of 2.3 percentage points, adjusted by the negative 0.6 percentage point forecast error adjustment is constant for all providers and, though not shown individually, is included in the total column. It is projected that aggregate payments will increase by 1.7 percent, assuming facilities do not change their care delivery and billing practices in response.
As can be seen from Tables 10A and 10B, the combined effects of all of the changes vary by specific types of providers and by location. For example, nearly all facilities would experience payment increases in FY 2011 total payments under RUG-IV, ranging from 5.2 percent in urban Outlying regions to 0.5 percent in the rural Pacific region. Of those facilities showing decreases under RUG-IV, facilities in the rural South Atlantic area of the country show the smallest decrease of 0.1 percent and facilities in the rural East North Central area show the largest decrease of 0.4 percent.
Section 1888(e) of the Act establishes the SNF PPS for the payment of Medicare SNF services for cost reporting periods beginning on or after July 1, 1998. This section of the statute prescribes a detailed formula for calculating payment rates under the SNF PPS, and does not provide for the use of any alternative methodology. It specifies that the base year cost data to be used for computing the SNF PPS payment rates must be from FY 1995 (October 1, 1994, through September 30, 1995). In accordance with the statute, we also incorporated a number of elements into the SNF PPS (for example, case-mix classification methodology, the MDS assessment schedule, a market basket index, a wage index, and the urban and rural distinction used in the development or adjustment of the Federal rates). Further, section 1888(e)(4)(H) of the Act specifically requires us to disseminate the payment rates for each new FY through the
As required by OMB Circular A-4 (available at
Overall estimated payments for SNFs in FY 2011 are projected to increase by $542 million, or 1.7 percent, compared with those in FY 2010. We estimate that under RUG-IV, SNFs in urban and rural areas would experience a 1.9 and 0.7 percent increase, respectively, in estimated payments compared with FY 2010. Providers in the urban New England region would show an increase in payments of 2.0 percent. We estimate that under HR-III, SNFs in urban and rural areas would experience a 1.8 and 1.5 percent increase in estimated payments, respectively, compared with FY 2010. Providers in the rural Pacific region and the East South Central region would both show increases in payments of 1.5 percent.
Finally, in accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.
We would ordinarily publish a notice of proposed rulemaking in the
We believe it is unnecessary to undertake notice and comment rulemaking in this instance, as the statute requires annual updates to the SNF PPS rates, and the methodologies used to update the rates and the policies initiated in this notice have been previously subject to public comment and finalized.
As discussed in section I.F, section 10325 of the ACA requires that the Secretary postpone implementation of the RUG-IV case-mix classification system. Notwithstanding this postponement, section 10325 further specifies that the Secretary is required to implement certain components of RUG-IV effective October 1, 2010 (that is, the changes relating to concurrent therapy and the lookback period). Because the concurrent therapy and look back period changes were already subject to notice and public comment and finalized in the FY 2010 SNF PPS final rule (74 FR 40288, August 11, 2009), we believe that these ACA requirements are largely self-implementing and require no substantive exercise of discretion by the Secretary. In addition, section 10325 of the ACA specifies that the implementation of the MDS 3.0 shall proceed as planned (see 74 FR 40342 through 40343), with an effective date of October 1, 2010. Similarly, we believe this provision is self-implementing and does not require the exercise of discretion. Thus, we find that notice and comment procedures are unnecessary.
However, as discussed in section I.F, there are some operational issues that arise in connection with the implementation of section 10325 of the ACA in the context of the existing RUG-III case-mix classification system. Thus, we are providing a 60-day comment period for public comment.
Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program.
The following Addendum will not appear in the Code of Federal Regulations.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice with comment period.
This notice with comment period announces the annual update to the hospice wage index for fiscal year 2011 and continues the phase out of the wage index budget neutrality adjustment factor (BNAF), with an additional 15 percent BNAF reduction, for a total BNAF reduction in FY 2011 of 25 percent. The BNAF phase-out will continue with successive 15 percent reductions from FY 2012 through FY 2016.
In commenting, please refer to file code CMS-1523-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one of the ways listed):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
a. For delivery in Washington, DC—Centers for Medicare & Medicaid Services, Department of Health and Human Services, Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201
(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
b. For delivery in Baltimore, MD—Centers for Medicare & Medicaid Services, Department of Health and Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address, please call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments,
Randy Throndset, (410) 786-0131 or Katie Lucas (410) 786-7723.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Hospice care is an approach to treatment that recognizes that the impending death of an individual warrants a change in the focus from curative care to palliative care for relief of pain and for symptom management. The goal of hospice care is to help terminally ill individuals continue life with minimal disruption to normal activities while remaining primarily in the home environment. A hospice uses an interdisciplinary approach to deliver medical, nursing, social, psychological, emotional, and spiritual services through use of a broad spectrum of professional and other caregivers, with the goal of making the individual as physically and emotionally comfortable as possible. Counseling services and inpatient respite services are available to the family of the hospice patient. Hospice programs consider both the patient and the family as a unit of care.
Section 1861(dd) of the Social Security Act (the Act) provides for coverage of hospice care for terminally ill Medicare beneficiaries who elect to receive care from a participating hospice. Section 1814(i) of the Act provides payment for Medicare participating hospices.
Our regulations at 42 CFR part 418 establish eligibility requirements, payment standards and procedures, define covered services, and delineate the conditions a hospice must meet to be approved for participation in the Medicare program. Part 418 subpart G provides for payment in one of four prospectively-determined rate categories (routine home care, continuous home care, inpatient respite care, and general inpatient care) to hospices based on each day a qualified Medicare beneficiary is under a hospice election.
Our regulations at § 418.306(c) require each hospice's labor market to be established using the most current hospital wage data available, including any changes by OMB to the Metropolitan Statistical Areas (MSAs) definitions. OMB revised the MSA definitions beginning in 2003 with new designations called the Core Based Statistical Areas (CBSAs). For the purposes of the hospice benefit, the term “MSA-based” refers to wage index values and designations based on the previous MSA designations before 2003. Conversely, the term “CBSA-based” refers to wage index values and designations based on the OMB revised MSA designations in 2003, which now include CBSAs. In the August 11, 2004 IPPS final rule (69 FR 48916, 49026), revised labor market area definitions were adopted at § 412.64(b), which were effective October 1, 2004 for acute care hospitals. We also revised the labor market areas for hospices using the new OMB standards that included CBSAs. In the FY 2006 hospice wage index final rule (70 FR 45130), we implemented a 1-year transition policy using a 50/50 blend of the CBSA-based wage index values and the Metropolitan Statistical Area (MSA)-based wage index values for FY 2006. The one-year transition policy ended on September 30, 2006. For FY 2007 through FY 2010 we used wage index values based on CBSA designations.
The hospice wage index is used to adjust payment rates for hospice agencies under the Medicare program to reflect local differences in area wage levels. The original hospice wage index was based on the 1981 Bureau of Labor Statistics hospital data and had not been updated since 1983. In 1994, because of disparity in wages from one geographical location to another, a committee was formulated to negotiate a wage index methodology that could be accepted by the industry and the government. This committee, functioning under a process established by the Negotiated Rulemaking Act of 1990, was comprised of national hospice associations; rural, urban, large and small hospices; multi-site hospices; consumer groups; and a government representative. On April 13, 1995, the Hospice Wage Index Negotiated Rulemaking Committee signed an agreement for the methodology to be used for updating the hospice wage index.
In the August 8, 1997
The reduction in overall Medicare payments if a new wage index were adopted was noted in the November 29, 1995 notice transmitting the recommendations of the negotiated rulemaking committee (60 FR 61264). Therefore, the Committee also decided that for each year in updating the hospice wage index, aggregate Medicare payments to hospices would remain budget neutral to payments as if the 1983 wage index had been used.
As decided upon by the Committee, budget neutrality means that, in a given year, estimated aggregate payments for Medicare hospice services using the updated hospice values will equal estimated payments that would have been made for these services if the 1983 hospice wage index values had remained in effect. Although payments to individual hospice programs may change each year, the total payments each year to hospices would not be affected by using the updated hospice wage index because total payments would be budget neutral as if the 1983 wage index had been used. To implement this policy, a BNAF would be computed and applied annually to the pre-floor, pre-reclassified hospital wage index, when deriving the hospice wage index.
The BNAF is calculated by computing estimated payments using the most recent completed year of hospice claims data. The units (days or hours) from those claims are multiplied by the updated hospice payment rates to calculate estimated payments. For the FY 2010 Hospice Wage Index Final Rule, that meant estimating payments for FY 2010 using FY 2008 hospice claims data, and applying the FY 2010 hospice payment rates (updating the FY 2009 rates by the FY 2010 hospital market basket update). The FY 2010 hospice wage index values are then applied to the labor portion of the payment rates only. The procedure is repeated using the same claims data and payment rates, but using the 1983 BLS-based wage index instead of the updated raw pre-floor, pre-reclassified hospital wage index (note that both wage indices include their respective floor adjustments). The total payments are then compared, and the adjustment required to make total payments equal is computed; that adjustment factor is the BNAF.
The August 8, 2008 FY 2009 Hospice Wage Index final rule (73 FR 46464) implemented a phase-out of the hospice BNAF over 3 years, beginning with a 25 percent reduction in the BNAF in FY 2009, an additional 50 percent reduction for a total of 75 percent in FY 2010, and complete phase out of the BNAF in FY 2011. However, subsequent to the publication of the above rule, the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (ARRA) eliminated the BNAF phase-out for FY 2009. Specifically, division B, section 4301(a) of ARRA prohibited the Secretary from phasing out or eliminating the BNAF in the Medicare hospice wage index before October 1, 2009, and instructed the Secretary to recompute and apply the final Medicare hospice wage index for FY 2009 as if there had been no reduction in the BNAF. While ARRA eliminated the BNAF phase-out for FY 2009, it neither changed the 75 percent reduction in the BNAF for FY 2010, nor prohibited the elimination of the BNAF in FY 2011 that were previously implemented in the August 8, 2008 Hospice Wage Index final rule.
In 2009 rulemaking for FY 2010, we accepted comments on the BNAF phase-out previously promulgated in 2008 rulemaking. As a result of those comments, a more gradual phase-out was promulgated in the FY 2010 final rule. Specifically, in the Hospice Wage Index for FY 2010 Final Rule, published on August 6, 2009 (74 FR 39384), we implemented a 7-year phase-out the BNAF, with a 10 percent reduction in FY 2010, an additional 15 percent reduction for a total of 25 percent in FY 2011, an additional 15 percent reduction for a total of 40 percent in FY 2012, an additional 15 percent reduction for a total of 55 percent in FY 2013, an additional 15 percent
The hospice wage index is updated annually. Our most recent annual hospice wage index final rule, published in the
As described in the August 8, 1997 hospice wage index final rule (62 FR 42860), the pre-floor and pre-reclassified hospital wage index is used as the raw wage index for the hospice benefit. These raw wage index values are then subject to either a budget neutrality adjustment or application of the hospice floor to compute the hospice wage index used to determine payments to hospices.
Pre-floor, pre-reclassified hospital wage index values of 0.8 or greater are currently adjusted by a reduced BNAF. Pre-floor, pre-reclassified hospital wage index values below 0.8 are adjusted by the greater of: (1) The hospice BNAF, reduced by 10 percent for FY 2010; or (2) the hospice floor (which is a 15 percent increase) subject to a maximum wage index value of 0.8. For example, if County A has a pre-floor, pre-reclassified hospital wage index (raw wage index) value of 0.4000, we would perform the following calculations using the budget neutrality factor (which for this example is 0.061775 less 10 percent, or 0.055598) and the hospice floor to determine County A's hospice wage index:
Pre-floor, pre-reclassified hospital wage index value below 0.8 multiplied by the 10 percent reduced BNAF: (0.4000 × 1.055598 = 0.4222)
Pre-floor, pre-reclassified hospital wage index value below 0.8 multiplied by the hospice floor: (0.4000 × 1.15 = 0.4600)
Based on these calculations, County A's hospice wage index would be 0.4600.
The BNAF has been computed and applied annually, in full or in reduced form, to the labor portion of the hospice payment. Currently, the labor portion of the payment rates is as follows: For Routine Home Care, 68.71 percent; for Continuous Home Care, 68.71 percent; for General Inpatient Care, 64.01 percent; and for Respite Care, 54.13 percent. The non-labor portion is equal to 100 percent minus the labor portion for each level of care. Therefore the non-labor portion of the payment rates is as follows: For Routine Home Care, 31.29 percent; for Continuous Home Care, 31.29 percent; for General Inpatient Care, 35.99 percent; and for Respite Care, 45.87 percent.
The annual update to the hospice wage index is published in the
Each hospice's labor market is determined based on definitions of MSAs issued by OMB. In general, an urban area is defined as an MSA or New England County Metropolitan Area (NECMA) as defined by OMB. Under § 412.64(b)(1)(ii)(C), a rural area is defined as any area outside of the urban area. The urban and rural area geographic classifications are defined in § 412.64(b)(1)(ii)(A) through (C), and have been used for the Medicare hospice benefit since implementation.
In the August 22, 2007 FY 2008 Inpatient Prospective Payment System (IPPS) final rule with comment period (72 FR 47130), § 412.64(b)(1)(ii)(B) was revised such that the two “New England deemed Counties” that had been considered rural under the OMB definitions (Litchfield County, CT and Merrimack County, NH) but deemed urban, were no longer considered urban effective for discharges occurring on or after October 1, 2007. Therefore, these two counties are now considered rural in accordance with § 412.64(b)(1)(ii)(C).
The requirement to adjust payments to reflect local differences in wages is codified in § 418.306(c) of our regulations; however there had been no explicit reference to § 412.64 in § 418.306(c) before implementation of the August 8, 2008 FY 2009 Hospice Wage Index final rule. Although § 412.64 had not been explicitly referred to, the hospice program has used the definition of “urban” in § 412.64(b)(1)(ii)(A) and (b)(1)(ii)(B), and the definition of “rural” as any area outside of an urban area in § 412.64(b)(1)(ii)(C). With the implementation of the August 8, 2008 FY 2009 Wage Index final rule, we now explicitly refer to those provisions in § 412.64 to make it absolutely clear how we define “urban” and “rural” for purposes of the hospice wage index.
When the raw pre-floor, pre-reclassified hospital wage index was adopted for use in deriving the hospice wage index, it was decided not to take into account IPPS geographic reclassifications. This policy of following OMB designations of rural or urban, rather than considering some Counties to be “deemed” urban, is consistent with our policy of not taking into account IPPS geographic reclassifications in determining payments under the hospice wage index.
When adopting OMB's new labor market designations in FY 2006, we identified some geographic areas where there were no hospitals, and thus, no hospital wage index data on which to base the calculation of the hospice wage index. Beginning in FY 2006, we adopted a policy to use the FY 2005 pre-floor, pre-reclassified hospital wage index value for rural areas when no hospital wage data were available. We also adopted the policy that for urban labor markets without a hospital from which hospital wage index data could be derived, all of the CBSAs within the State would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index value to use as a reasonable proxy for these areas. Consequently, in subsequent fiscal years, we applied the average pre-floor, pre-reclassified hospital wage index data from all urban areas in that state, to urban areas without a hospital. From FY 2007 to FY 2010, the only such CBSA was 25980, Hinesville-Fort Stewart, Georgia.
Under the CBSA labor market areas, there are no hospitals in rural locations
In the FY 2008 final rule (72 FR 50214, 50217) we considered alternatives to our methodology to update the pre-floor, pre-reclassified hospital wage index for rural areas without hospital wage data. We indicated that we believed that the best imputed proxy for rural areas, would: (1) Use pre-floor, pre-reclassified hospital data; (2) use the most local data available to impute a rural pre-floor, pre-reclassified hospital wage index; (3) be easy to evaluate; and, (4) be easy to update from year-to-year.
Therefore, in FY 2008 through FY 2010, in cases where there was a rural area without rural hospital wage data, we used the average pre-floor, pre-reclassified hospital wage index data from all contiguous CBSAs to represent a reasonable proxy for the rural area. This approach does not use rural data; however, the approach uses pre-floor, pre-reclassified hospital wage data, is easy to evaluate, is easy to update from year-to-year, and uses the most local data available. In the FY 2008 rule (72 FR at 50217), we noted that in determining an imputed rural pre-floor, pre-reclassified hospital wage index, we interpret the term “contiguous” to mean sharing a border. For example, in the case of Massachusetts, the entire rural area consists of Dukes and Nantucket counties. We determined that the borders of Dukes and Nantucket counties are contiguous with Barnstable and Bristol counties. Under the adopted methodology, the pre-floor, pre-reclassified hospital wage index values for the counties of Barnstable (CBSA 12700, Barnstable Town, MA) and Bristol (CBSA 39300, Providence-New Bedford-Fall River, RI-MA) would be averaged resulting in an imputed pre-floor, pre-reclassified rural hospital wage index for FY 2008. We noted in the FY 2008 final hospice wage index rule that while we believe that this policy could be readily applied to other rural areas that lack hospital wage data (possibly due to hospitals converting to a different provider type, such as a Critical Access Hospital, that does not submit the appropriate wage data), if a similar situation arose in the future, we would re-examine this policy.
We also noted that we do not believe that this policy would be appropriate for Puerto Rico, as there are sufficient economic differences between hospitals in the United States and those in Puerto Rico, including the payment of hospitals in Puerto Rico using blended Federal/Commonwealth-specific rates. Therefore we believe that a separate and distinct policy for Puerto Rico is necessary. Any alternative methodology for imputing a pre-floor, pre-reclassified hospital wage index for rural Puerto Rico would need to take into account the economic differences between hospitals in the United States and those in Puerto Rico. Our policy of imputing a rural pre-floor, pre-reclassified hospital wage index based on the pre-floor, pre-reclassified hospital wage index(es) of CBSAs contiguous to the rural area in question does not recognize the unique circumstances of Puerto Rico. While we have not yet identified an alternative methodology for imputing a pre-floor, pre-reclassified hospital wage index for rural Puerto Rico, we will continue to evaluate the feasibility of using existing hospital wage data and, possibly, wage data from other sources. For FY 2008 through FY 2010, we have used the most recent pre-floor, pre-reclassified hospital wage index available for Puerto Rico, which is 0.4047.
The Office of Management and Budget (OMB) regularly publishes a bulletin that updates the titles of certain CBSAs. In the FY 2008 Final Rule (72 FR 50218) we noted that the FY 2008 rule and all subsequent hospice wage index rules and notices would incorporate CBSA changes from the most recent OMB bulletins. The OMB bulletins may be accessed at
Historically, under the Medicare hospice benefit, we have established hospice wage index values calculated from the raw pre-floor, pre-reclassified hospital wage data (also called the IPPS wage index) without taking into account geographic reclassification under sections 1886(d)(8) and (d)(10) of the Act. The wage adjustment established under the Medicare hospice benefit is based on the location where services are furnished without any reclassification.
For FY 2010, the data collected from cost reports submitted by hospitals for cost reporting periods beginning during FY 2005 were used to compute the 2009 raw pre-floor, pre-reclassified hospital wage index data without taking into account geographic reclassification under sections 1886(d)(8) and (d)(10) of the Act. This 2009 raw pre-floor, pre-reclassified hospital wage index was used to derive the applicable wage index values for the hospice wage index because these data (FY 2005) are the most recent complete cost data.
Beginning in FY 2008, the IPPS apportioned the wage data for multi-campus hospitals located in different labor market areas (CBSAs) to each CBSA where the campuses were located (
Section 4441(a) of the Balanced Budget Act of 1997 (BBA) amended section 1814(i)(1)(C)(ii) of the Act to establish updates to hospice rates for FYs 1998 through 2002. Hospice rates were to be updated by a factor equal to the market basket index, minus 1
Historically, the rate update has been published through a separate administrative instruction issued annually in the summer to provide adequate time to implement system change requirements. Providers determine their payments by applying the hospice wage index in this notice with comment period to the labor portion of the published hospice rates.
The hospice final rule published in the
As noted above, our hospice payment rules utilize the wage adjustment factors used by the Secretary for purposes of section 1886(d)(3)(E) of the Act for hospital wage adjustments. We are again using the pre-floor and pre-reclassified hospital wage index data as the basis to determine the hospice wage index, which is then used to adjust the labor portion of the hospice payment rates based on the geographic area where the beneficiary receives hospice care. We believe the use of the pre-floor, pre-reclassified hospital wage index data, as a basis for the hospice wage index, results in the appropriate adjustment to the labor portion of the costs. For the FY 2011 update to the hospice wage index, we are continuing to use the most recent pre-floor, pre-reclassified hospital wage index available at the time of publication.
In adopting the CBSA designations, we identified some geographic areas where there are no hospitals, and no hospital wage data on which to base the calculation of the hospice wage index. These areas are described in section I.B.4 of this notice with comment period. Beginning in FY 2006, we adopted a policy that, for urban labor markets without an urban hospital from which a pre-floor, pre-reclassified hospital wage index can be derived, all of the urban CBSA pre-floor, pre-reclassified hospital wage index values within the State would be used to calculate a statewide urban average pre-floor, pre-reclassified hospital wage index to use as a reasonable proxy for these areas. Currently, the only CBSA that would be affected by this policy is CBSA 25980, Hinesville-Fort Stewart, Georgia. We are continuing this policy for FY 2011.
Currently, the only rural areas where there are no hospitals from which to calculate a pre-floor, pre-reclassified hospital wage index are Massachusetts and Puerto Rico. In August 2007 (72 FR 50217) we adopted a methodology for imputing rural pre-floor, pre-reclassified hospital wage index values for areas where no hospital wage data are available as an acceptable proxy; that methodology is also described in section I.B.4 of this notice with comment period. In FY 2011, Dukes and Nantucket Counties are the only areas in rural Massachusetts which are affected. We are again applying this methodology for imputing a rural pre-floor, pre-reclassified hospital wage index for those rural areas without rural hospital wage data in FY 2011.
However, as we noted in section I.B.4 of this notice with comment period, we do not believe that this policy is appropriate for Puerto Rico. For FY 2011, we again use the most recent pre-floor, pre-reclassified hospital wage index value available for Puerto Rico, which is 0.4047. This pre-floor, pre-reclassified hospital wage index value will then be adjusted upward by the hospice 15 percent floor adjustment in the computing of the FY 2011 hospice wage index.
The hospice wage index set forth in this notice with comment period would be effective October 1, 2010 through September 30, 2011. We are not modifying the hospice wage index methodology. In accordance with our regulations and the agreement signed with other members of the Hospice Wage Index Negotiated Rulemaking Committee, we are using the most current hospital data available. For this notice with comment period, the FY 2010 hospital wage index was the most current hospital wage data available for calculating the FY 2011 hospice wage index values. We used the FY 2010 pre-floor, pre-reclassified hospital wage index data for this calculation.
As noted above, for FY 2011, the hospice wage index values will be based solely on the adoption of the CBSA-based labor market definitions and the hospital wage index. We continue to use the most recent pre-floor and pre-reclassified hospital wage index data available (based on FY 2006 hospital cost report wage data). A detailed description of the methodology used to compute the hospice wage index is contained in the September 4, 1996 hospice wage index proposed rule (61 FR 46579), the August 8, 1997 hospice wage index final rule (62 FR 42860), and the August 6, 2009 FY 2010 Hospice Wage Index final rule (74 FR 39384).
The August 6, 2009 FY 2010 Hospice Wage Index final rule finalized a provision to phase out the BNAF over 7 years, with a 10 percent reduction in the BNAF in FY 2010, and an additional 15 percent reduction over each of the next 6 years, with complete phaseout in FY 2016. Therefore, in accordance with the August 6, 2009 FY 2010 Hospice Wage Index final rule (74 FR 39384), the BNAF for FY 2011 was reduced by an additional 15 percent for a total BNAF reduction of 25 percent (10 percent from FY 2010 and 15 percent for FY 2011).
An unreduced BNAF for FY 2011 is computed to be 0.060562 (or 6.0562 percent). A 25 percent reduced BNAF, which is subsequently applied to the pre-floor, pre-reclassified hospital wage index values greater than or equal to 0.8, is computed to be 0.045422 (or 4.5422 percent). Pre-floor, pre-reclassified hospital wage index values which are less than 0.8 are subject to the hospice floor calculation; that calculation is described in section I.B.1.
The hospice wage index for FY 2011 is shown in Addenda A and B. Specifically, Addendum A reflects the FY 2011 wage index values for urban areas under the CBSA designations. Addendum B reflects the FY 2011 wage index values for rural areas under the CBSA designations.
The full (unreduced) BNAF calculated for FY 2011 is 6.0562 percent. As implemented in the August 6, 2009 FY 2010 Hospice Wage Index final rule (74 FR 39384), for FY 2011 we are reducing
For FY 2011, this is mathematically equivalent to taking 75 percent of the full BNAF value, or multiplying 0.060562 by 0.75, which equals 0.045422 (4.5422 percent). The BNAF of 4.5422 percent reflects a 25 percent reduction in the BNAF. The 25 percent reduced BNAF (4.5422 percent) was applied to the pre-floor, pre-reclassified hospital wage index values of 0.8 or greater in the FY 2011 hospice wage index.
The hospice floor calculation would still apply to any pre-floor, pre-reclassified hospital wage index values less than 0.8. Currently, the hospice floor calculation has 4 steps. First, pre-floor, pre-reclassified hospital wage index values that are less than 0.8 are multiplied by 1.15. Second, the minimum of 0.8 or the pre-floor, pre-reclassified hospital wage index value times 1.15 is chosen as the preliminary hospice wage index value. Steps 1 and 2 are referred to in this notice with comment period as the hospice 15 percent floor adjustment. Third, the pre-floor, pre-reclassified hospital wage index value is multiplied by the BNAF. Finally, the greater result of either step 2 or step 3 is the final hospice wage index value. The hospice floor calculation is unchanged by the BNAF reduction. We note that steps 3 and 4 will become unnecessary once the BNAF is eliminated.
We examined the effects of an additional 15 percent reduction in the BNAF, for a total BNAF reduction of 25 percent, on the FY 2011 hospice wage index compared to remaining with the 10 percent reduced BNAF which was used for the FY 2010 hospice wage index. The FY 2011 BNAF reduction of an additional 15 percent (for a total BNAF reduction of 25 percent) resulted in approximately a 0.9 percent reduction in most hospice wage index values. The elimination of the BNAF in FY 2016 would result in an estimated final reduction of the FY 2016 hospice wage index values of approximately 4.3 percent compared to FY 2011 hospice wage index values.
Those CBSAs whose pre-floor, pre-reclassified hospital wage index values had the hospice 15 percent floor adjustment applied before the BNAF reduction would not be affected by this phase-out of the BNAF. These CBSAs, which typically include rural areas, are protected by the hospice 15 percent floor adjustment. We have estimated that 19 CBSAs are already protected by the hospice 15 percent floor adjustment, and are therefore completely unaffected by the BNAF reduction. There are 148 hospices in these 19 CBSAs.
Additionally, some CBSAs with pre-floor, pre-reclassified wage index values less than 0.8 will become newly eligible for the hospice 15 percent floor adjustment as a result of the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent). Areas where the hospice floor calculation would have yielded a wage index value greater than 0.8 if the 10 percent reduction in BNAF were maintained, but which will have a final wage index value less than 0.8 after the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent) is applied, will now be eligible for the hospice 15 percent floor adjustment. These CBSAs will see a smaller reduction in their hospice wage index values since the hospice 15 percent floor adjustment will apply. We have estimated that 5 CBSAs will have their pre-floor, pre-reclassified hospital wage index value become newly protected by the hospice 15 percent floor adjustment due to the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent). Because of the protection given by the hospice 15 percent floor adjustment, these CBSAs will see smaller percentage decreases in their hospice wage index values than those CBSAs that are not eligible for the hospice 15 percent floor adjustment. This will affect those hospices with lower hospice wage index values, which are typically in rural areas. There are 196 hospices located in these 5 CBSAs.
Finally, the hospice wage index values only apply to the labor portion of the payment rates; the labor portion is described in section I.B.1 of this notice with comment period. Therefore the projected reduction in payments due solely to the additional 15 percent reduction of the BNAF (for a total BNAF reduction of 25 percent) is estimated to be 0.6 percent, as calculated from the difference in column 3 and column 4 of Table 1 in section VII of this notice with comment period. In addition, the estimated effects of the phase-out of the BNAF will be mitigated by any hospital market basket updates in payments. The hospital market basket update for FY 2011 is 2.6 percent; this 2.6 percent does not reflect the provision in the Affordable Care Act which reduced the hospital market basket update by 0.25 percentage point since that reduction does not apply to hospices. The final update will be communicated through an administrative instruction. The combined effects of the updated wage data, an additional 15 percent reduction of the BNAF (for a total BNAF reduction of 25 percent), and a hospital market basket update of 2.6 percent for FY 2011 are an overall estimated increase in payments to hospices in FY 2011 of 1.8 percent (column 5 of Table 1 in section VII of this notice with comment period).
On March 23, 2010, President Obama signed into law the Affordable Care Act (Pub. L. 111-148). Section 3132 of this law requires hospices to adopt some of MedPAC's hospice program eligibility recertification recommendations, including a requirement for a physician or nurse practitioner to have a face-to-face visit with patients prior to the 180 day recertification, and to attest that such a visit took place. Please
Please do not send comments on any of these proposals to us under this Hospice Wage Index Notice. Instead, please follow the instructions in the Home Health Prospective Payment System Rate Update for Calendar Year 2011; Changes in Certification Requirements for Home Health Agencies and Hospices Proposed Rule to comment on the hospice proposals described in that proposed rule. We will respond to those comments in the Home Health Prospective Payment System Rate Update for Calendar Year 2011; Changes in Certification Requirements for Home Health Agencies and Hospices Final Rule.
In the FY 2010 hospice wage index proposed rule, at 74 FR 18920-18922, we solicited comments on the current methodology of calculating the aggregate hospice cap. As a result of that solicitation, we received a number of comments regarding the hospice cap methodology, with several major themes emerging. Many commenters wanted more timely notification of cap overpayments. Many also requested that hospices have access to patients' full hospice utilization history. According to commenters, having this information would enable hospices to better manage their aggregate cap, and to accurately apportion patients when they have been in more than 1 hospice. Some commenters asked that we wage-adjust the annual cap amount to account for geographic differences in costs. Other commenters asked that we modernize the cap, apportioning hospice patients over consecutive years, with some suggesting we allow a new cap amount for readmitted patients who experience a break in hospice utilization. A few encouraged us not to raise the cap or do away with the cap, as it is the only limitation on hospice spending, and curbs excesses from the minority of hospices with questionable admission practices.
We noted, in FY 2010 rulemaking, that there have been some technological advances in our data systems which we believe might enable us to modernize the cap calculation process while providing information facilitating the ability of hospices to better manage their cap. For this notice with comment period, we provide additional details regarding policy options that we are considering for modernizing the cap calculation methodology. We are soliciting comments on the policy options we are considering, as well as comments/suggestions for other possible options/alternatives to modernize the cap calculation methodology, to be considered in possible future rulemaking.
One policy option which we are considering would address industry concerns about the timeliness of cap-related information, and hospices' comments about their inability to see a patient's full hospice utilization history. Hospices currently have the ability to query a beneficiary's hospice utilization history; however, the process can be cumbersome and can involve multiple steps to see the complete history. Because the query system is linked to the Common Working File, it is not as easily changed to provide a more streamlined process for providers to get a complete beneficiary hospice utilization history.
CMS has recently redesigned a national Provider Statistical and Reimbursement Report (PS&R) database; the PS&R currently accumulates statistical and reimbursement data from Medicare claims, and is normally used in preparing and settling cost reports of various Medicare provider types. Because the PS&R is built from claims data, it could theoretically include any information normally found on a claim.
We believe this new PS&R database, if tailored to hospice needs, may be able to provide hospices with more streamlined information related to their patients' prior hospice utilization, thus enabling providers to better manage their aggregate cap. We are investigating the possibility that the PS&R report include each patient's total days of hospice care, with from and through dates for every hospice election, along with a provider identifier, for multiple years. Additionally, we are investigating whether this database could also include total payments for patients for services provided during a specific time period (
In addition to possibly enabling hospice providers to more easily obtain access to their patients' full hospice utilization history, we believe that the national database and associated improved data processing technologies will enable Medicare contractors to adopt a more efficient automation approach in calculating each provider's cap. This might allow contractors to send providers the results of their cap calculations sooner.
The improved technology could provide an opportunity for CMS to consider revising the cap calculation methodology to apportion hospice patients with long stays over more than one year. Below, we present some policy options which we are considering related to calculation methodology, along with cap issues related to timing.
In this option, patients who received hospice care in more than 1 cap accounting year would be apportioned across years on a patient-by-patient basis. A multi-year apportionment on a patient-by-patient basis raises issues regarding the timing of cap calculations. If, for example, the Medicare contractor is required to wait until all of a hospice's Medicare beneficiaries in a given year die so that the contractor can calculate mathematically exact multi-year apportionments, the determination and notification of the cap and overpayment might be delayed for years; alternatively, the fiscal intermediary might issue a tentative determination subject to finalization at a later time (which would lead to significant uncertainty, among other things) or a “final” determination subject to potentially numerous revisions in future years (which would also lead to significant uncertainty, among other things). In light of these issues, under one possible approach, the number of years which the beneficiary would be apportioned in the standard cap calculation process would be established by the Secretary. In examining data from claims, we found that 99.98 percent of all Medicare hospice beneficiaries who died in 2007 began hospice care in 2006 or 2007. Similarly, we found that 96.83 percent of all Medicare hospice beneficiaries who died in 2008 began hospice care in 2007 or 2008. Therefore, the Secretary could establish that hospice patients will be apportioned for cap calculation purposes in the year of election plus one additional year. In this example, if a patient's hospice election spans more than the election year, the standard cap calculation methodology would apportion the patient over the election year and one subsequent year, based on the number of days the patient received hospice care in each of the two years, also factoring in the different hospices which provided care to the patient during these two years, with the fractional shares of the patient summing to 1.
A number of commenters suggested we allow apportioning of hospice care over two or more years; this suggestion was partly due to concerns over a hospice admitting a patient who had received hospice care elsewhere in a previous year, and therefore could not be counted in the admitting hospice's cap calculation. As such, we are also considering a process where a hospice provider could request the Medicare contractor recalculate a provider's cap using a longer apportioning timeframe than that established in the standard calculation process. While any hospice provider could request a recalculation,
As described in 42 CFR 405.1885(b) contractors may only re-open and revise a hospice's cap determination within 3 years of the date of receipt of the determination of program reimbursement letter. Counting beneficiaries across multiple years would be subject to re-opening regulations. We believe that a standard cap calculation methodology which adopts a multi-year apportionment (such as apportioning patients in the year of election and one subsequent year), coupled with the ability for providers to request a recalculation to include a longer apportionment timeframe, while also providing hospices access to their patients' full utilization history is responsive to commenters' suggestions. It is a streamlined, “easy for hospices to replicate” process that might facilitate better internal management.
We are considering coupling changes to the aggregate cap with overall hospice payment reform. As we described in last year's Hospice Wage Index Final Rule (74 FR 39384), we are gearing up for hospice payment reform. MedPAC has suggested that the current payment system includes financial incentives which may create program vulnerabilities, and recommended that we reform the hospice payment system. We have been collecting additional data on hospice claims to analyze hospice resource use with the goal of reforming the payment system in the near future. Therefore, we are also considering an option which would defer changes to the current standard cap calculation methodology until we deploy the reformed payment system. This option would allow us to analyze how spending limits should be used to mitigate misuse of the benefit, in the context of broader hospice payment reform. Under this option, we would generally continue to calculate hospice aggregate caps using the current methodology, but we would allow hospice providers to request the Medicare contractor recalculate their cap, apportioning patients across multiple years, as described in Option 1. This option also would provide hospices access to the redesigned PS&R database as described in Option 1, thereby providing easier access to their full utilization history.
Similar to the recalculation process described in Option 1, this option would be subject to regulatory requirements regarding re-opening and revision of a previous cap determination.
Aligning the cap year timeframe to coincide with the hospice rate update year would likely simplify hospice recordkeeping and better match the counting of beneficiaries with associated Medicare payments. The hospice rate update year, which also corresponds with the Federal fiscal year, runs from October 1st to September 30th; the inpatient and aggregate cap year currently runs from November 1st to October 31st; and the beneficiary counting timeframe for purposes of the current hospice aggregate cap calculation runs from September 28th to September 27th.
The current cap accounting year timeframe provides for process efficiencies given the current methodology for calculating the aggregate cap, while allowing for counting the beneficiary in the reporting period where he or she is expected to use most of the days of covered hospice care (48 FR 38158). If we apportion beneficiaries across more than one year, we believe that there would no longer be an advantage to defining the cap accounting year differently from the hospice rate update year.
For the inpatient cap, this would mean using the October 1st to September 30th timeframe for counting actual total Medicare patient days, total Medicare GIP and respite days, allowable Medicare GIP and respite days, and total actual Medicare payments for inpatient care provided during the cap year. For the aggregate cap, this would mean computing the total actual Medicare payments based upon services provided during the October 1st to September 30th timeframe. In doing so, all aspects of the inpatient and aggregate cap calculations would focus on the hospice rate update and Federal fiscal year, rather than on multiple different timeframes. Note that payments are counted based on the date the services are provided, not based on when the payments are actually made.
Shifting the cap accounting year timeframes to coincide with the hospice rate update year would simplify the new cap calculation methodology. In the year of transition, we could allow 3 extra days to count beneficiaries. For example, if these changes were to occur beginning with the 2012 cap year, we could count beneficiaries from September 28, 2012 to September 30, 2013, which is 12 months plus 3 days, in that cap year's calculation. In counting payments, we could count the payments for services provided in October twice: Once in the previous cap calculation, using the original timeframes, and again in the transition year cap calculation, using the fiscal year timeframes. In each year we would still have 12 months of payments (in this example, November 2011 to October 2012 in the last year using the original timeframes, and October 2012 to September 2013 in the transition year), but in the transition year would have 12 months plus 3 days of headcount in the aggregate cap calculation, which would be advantageous to hospices.
If we shift the cap accounting year to match the hospice rate update year, it would also affect our calculation of the annual cap amount. Section 1814(i)(2)(B) of the Social Security Act (the Act) requires us to update the $6,500 cap amount by the same percentage as the percentage increase or decrease in the medical care expenditure category of the Consumer Price Index for All Urban Consumers (CPI-U) from March 1984 to the “fifth month of the accounting year”. By changing the cap accounting year to coincide with the hospice rate update year and Federal fiscal year, we would use the CPI-U for February when updating the cap amount, instead of the current process which uses the March CPI-U to update the cap amount.
Currently we do not require contractors to mail hospice cap determination letters on a particular date. However, if we adopted a cap methodology which required adjusting prior year cap reports, we would likely need to require contractors to mail cap determination letters on a uniform schedule, to avoid problems where one contractor does so more quickly than another. Without a uniformly applied schedule for mailing the cap determination letters, hospices could receive the letters at various times during the year. If we were to require
We are soliciting public comment on the above suggested changes, and any other suggestions for ways to streamline the cap calculation. Please submit your cap-related comments in accordance with the instructions given on pages 2-6 of this notice with comment period.
We ordinarily publish a notice of proposed rulemaking in the
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Because of the large number of public comments we normally receive on
We have examined the impacts of this notice with comment period as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)). We estimated the impact on hospices, as a result of the changes to the FY 2011 hospice wage index and of reducing the BNAF by an additional 15 percent, for a total BNAF reduction of 25 percent (10 percent in FY 2010 and 15 percent in FY 2011). The BNAF reduction is part of a 7-year BNAF phase-out that was finalized in previous rulemaking (74 FR 39384, dated August 6, 2009), and is not a policy change put forward in this notice with comment period.
As discussed previously, the methodology for computing the hospice wage index was determined through a negotiated rulemaking committee and promulgated in the August 8, 1997 hospice wage index final rule (62 FR 42860). The BNAF, which was promulgated in the August 8, 1997 rule, is being phased out. This rule updates the hospice wage index in accordance with the August 6, 2009 FY 2010 Hospice Wage Index final rule (74 FR 39384), which finalized a 10 percent reduced BNAF for FY 2010 as the first year of a 7-year phase-out of the BNAF, to be followed by an additional 15 percent per year reduction in the BNAF in each of the next 6 years. Total phase-out will be complete by FY 2016.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We have determined that this is an economically significant notice with comment period under Executive Order 12866.
Column 4 of Table 1 shows the combined effects of the updated wage data (the 2010 pre-floor, pre-reclassified hospital wage index) and of the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent), comparing estimated payments for FY 2011 to estimated payments for FY 2010. The FY 2010 payments used for comparison have a 10 percent reduced BNAF applied. We estimate that the total hospice payments for FY 2011 will decrease by $110 million as a result of the application of the updated wage data ($−30 million) and the total 25 percent reduction in the BNAF ($−80 million). This estimate does not take into account any hospital market basket update, which is 2.6 percent for FY 2011. This 2.6 percent does not reflect the provision in the Affordable Care Act which reduced the hospital market basket update by 0.25 percentage point since that reduction does not apply to hospices. The hospital market basket update and associated payment rates will be communicated through an administrative instruction. The effect of a 2.6 percent hospital market basket update on payments to hospices is approximately $330 million. Taking into account a 2.6 percent hospital market basket update (+$330 million), in addition to the updated wage data ($−30 million) and the total 25 percent reduction in the BNAF ($−80 million), it is estimated that hospice payments would increase by $220 million in FY 2010 ($330 million − $110 million = $220 million). The percent change in payments to hospices due to the combined effects of the updated wage data, the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent), and the hospital market basket update of 2.6 percent is reflected in column 5 of the impact table (Table 1).
We estimate that this notice with comment period is “economically significant” as measured by the $100 million threshold, and hence also a major notice with comment period under the Congressional Review Act. Accordingly, we have prepared a Regulatory Impact Analysis that to the best of our ability presents the costs and benefits of the Notice.
The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, we estimate that almost all hospices are small entities as that term is used in the RFA. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $7.0 million to $34.5 million in any 1 year). While the Small Business Administration (SBA) does not define a size threshold in terms of annual revenues for hospices, they do define one for home health agencies ($13.5 million;
Therefore, for purposes of the RFA, approximately 96 percent of hospices are considered small businesses according to the Small Business Administration's size standards with total revenues of $13.5 million or less in any 1 year, and 48 percent are nonprofit organizations.
We note that the hospice wage index methodology was previously guided by consensus, through a negotiated rulemaking committee that included representatives of national hospice associations, rural, urban, large and small hospices, multi-site hospices, and consumer groups. Based on all of the options considered, the committee agreed on the methodology described in the committee statement, and after notice and comment, it was adopted into regulation in the August 8, 1997 final rule. In developing the process for updating the hospice wage index in the 1997 final rule, we considered the impact of this methodology on small hospice entities and attempted to mitigate any potential negative effects. Small hospice entities are more likely to be in rural areas, which are less affected by the BNAF reduction than entities in urban areas. Generally, hospices in rural areas are protected by the hospice floor adjustment, which lessens the effect of the BNAF reduction.
The effects of this rule on hospices are shown in Table 1. Overall, Medicare payments to all hospices will decrease by an estimated 0.8 percent, reflecting the combined effects of the updated wage data and the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent). The combined effects of the updated wage data and the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent) on small or medium sized hospices (as defined by routine home care days rather than by the SBA definition), is −0.7. Furthermore, when including the hospital market basket update of 2.6 percent into these estimates, the combined effects on Medicare payment to all hospices would result in an estimated increase of approximately 1.8 percent. For small and medium hospices (as defined by routine home care days), the estimated effects on revenue when accounting for the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the hospital market basket update are increases in payments of 1.8 percent and 1.9 percent, respectively. Overall average hospice revenue effects will be slightly less than these estimates since according to the National Hospice and Palliative Care Organization, about 16 percent of hospice patients are non-Medicare.
HHS' practice in interpreting the RFA is to consider effects economically “significant” only if they reach a threshold of 3 to 5 percent or more of total revenue or total costs. As noted above, the combined effect of only the updated wage data and the additional 15 percent reduced BNAF (for a total BNAF reduction of 25 percent) for all hospices is −0.8 percent. Since, by SBA's definition of “small” (when applied to hospices), nearly all hospices are considered to be small entities, the combined effect of only the updated wage data and the additional 15 percent reduced BNAF (−0.8 percent) does not exceed HHS' 3.0 percent minimum threshold. However, HHS' practice in determining “significant economic impact” has considered either
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This notice with comment period only affects hospices. Therefore, the Secretary has determined that this notice with comment period will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2010, that threshold is approximately $135 million. This notice with comment period is not anticipated to have an effect on State, local, or Tribal governments or on the private sector of $135 million or more.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this notice with comment period under the threshold criteria of Executive Order 13132, Federalism, and have determined that it will not have an impact on the rights, roles, and responsibilities of State, local, or Tribal governments.
This section discusses the impact of the projected effects of the hospice wage index, including the effects of a 2.6 percent hospital market basket update that will be communicated separately through an administrative instruction. This notice with comment period continues to use the CBSA-based pre-floor, pre-reclassified hospital wage index as a basis for the hospice wage index and continues to use the same policies for treatment of areas (rural and urban) without hospital wage data. The final FY 2011 hospice wage index is based upon the 2010 pre-floor, pre-reclassified hospital wage index and the most complete claims data available (FY 2009) with an additional 15 percent reduction in the BNAF (combined with the 10 percent reduction in the BNAF taken in FY 2010, for a total BNAF reduction of 25 percent). The BNAF reduction is part of a 7-year BNAF phase-out that was finalized in previous rulemaking (74 FR 39384, dated August 6, 2009), and is not a policy change put forward in this notice with comment period.
For the purposes of our impacts, our baseline is estimated FY 2010 payments with a 10 percent BNAF reduction, using the 2009 pre-floor, pre-reclassified hospital wage index. Our first comparison (column 3, Table 1) compares our baseline to estimated FY 2011 payments (holding payment rates constant) using the updated wage data (2010 pre-floor, pre-reclassified hospital wage index). Consequently, the estimated effects illustrated in column 3 of Table 1 show the distributional effects of the updated wage data only. The effects of using the updated wage data combined with the additional 15 percent reduction in the BNAF (for a total BNAF reduction of 25 percent) are illustrated in column 4 of Table 1.
We have included a comparison of the combined effects of the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), the updated wage data, and a 2.6 percent hospital market basket increase for FY 2011 (Table 1, column 5). Presenting these data gives the hospice industry a more complete picture of the effects on their total revenue of the hospice wage index discussed in this rule, the BNAF phase-out, and the FY 2011 hospital market basket update. Certain events may limit the scope or accuracy of our impact analysis, because such an analysis is susceptible to forecasting errors due to other changes in the forecasted impact time period. The nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon hospices.
Table 1 shows the results of our analysis. In column 1, we indicate the number of hospices included in our analysis as of February 25, 2010 which had also filed claims in FY 2009. In column 2, we indicate the number of routine home care days that were included in our analysis, although the analysis was performed on all types of hospice care. Columns 3, 4, and 5 compare FY 2011 estimated payments with those estimated for FY 2010. The estimated FY 2010 payments incorporate a BNAF which has been reduced by 10 percent. Column 3 shows the percentage change in estimated Medicare payments for FY 2011 due to the effects of the updated wage data only, compared with estimated FY 2010 payments. The effect of the updated wage data can vary from region to region depending on the fluctuations in the wage index values of the pre-floor, pre-reclassified hospital wage index. Column 4 shows the percentage change in estimated hospice payments from FY 2010 to FY 2011 due to the combined effects of using the updated wage data and reducing the BNAF by an additional 15 percent (for a total BNAF reduction of 25 percent). Column 5 shows the percentage change in estimated hospice payments from FY 2010 to FY 2011 due to the combined effects of using updated wage data, an additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and a 2.6 percent hospital market basket update.
Table 1 also categorizes hospices by various geographic and hospice characteristics. The first row of data displays the aggregate result of the impact for all Medicare-certified hospices. The second and third rows of the table categorize hospices according to their geographic location (urban and rural). Our analysis indicated that there are 2,380 hospices located in urban areas and 1,049 hospices located in rural areas. The next two row groupings in the table indicate the number of hospices by census region, also broken down by urban and rural hospices. The next grouping shows the impact on hospices based on the size of the hospice's program. We determined that the majority of hospice payments are made at the routine home care rate. Therefore, we based the size of each individual hospice's program on the number of routine home care days provided in FY 2009. The next grouping shows the impact on hospices by type of ownership. The final grouping shows the impact on hospices defined by whether they are provider-based or freestanding.
As indicated in Table 1, there are 3,429 hospices. Approximately 48.0 percent of Medicare-certified hospices are identified as voluntary (non-profit) or government agencies. Because the National Hospice and Palliative Care Organization estimates that approximately 83.6 percent of hospice patients in 2007 were Medicare beneficiaries, we have not considered other sources of revenue in this analysis.
As stated previously, the following discussions are limited to demonstrating trends rather than projected dollars. We used the pre-floor, pre-reclassified hospital wage indexes as well as the most complete claims data available (FY 2009) in developing the impact analysis. The FY 2011 payment rates will be adjusted to reflect the full hospital market basket, as required by section 1814(i)(1)(C)(ii)(VII) of the Act. As previously noted, we publish these rates through administrative instructions rather than in a proposed rule. The FY 2011 hospital market basket update is 2.6 percent. This 2.6 percent does not reflect the provision in the Affordable Care Act which reduced the hospital market basket update by 0.25 percentage points since that reduction does not apply to hospices. Since the inclusion of the effect of a hospital market basket increase provides a more complete picture of projected total hospice payments for FY 2011, the last column of Table 1 shows the combined impacts of the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the 2.6 percent hospital market basket update. As discussed in the FY 2006 hospice wage index final rule (70 FR 45129), hospice agencies may use multiple hospice wage index values to compute their payments based on potentially different geographic locations. Before January 1, 2008, the location of the beneficiary was used to determine the CBSA for routine and continuous home care and the location of the hospice agency was used to determine the CBSA for respite and general inpatient care. Beginning January 1, 2008, the hospice wage index utilized is based on the location of the site of service. As the location of the beneficiary's home and the location of the facility may vary, there will still be variability in geographic location for an individual hospice. We anticipate that the location of the various sites will usually correspond with the geographic location of the hospice, and thus we will continue to use the location of the hospice for our analyses of the impact of the changes to the hospice wage index in this rule. For this analysis, we use payments to the hospice in the aggregate based on the location of the hospice.
The impact of hospice wage index changes has been analyzed according to the type of hospice, geographic location, type of ownership, hospice base, and size. Our analysis shows that most hospices are in urban areas and provide the vast majority of routine home care days. Most hospices are medium-sized
Under the Medicare hospice benefit, hospices can provide four different levels of care days. The majority of the days provided by a hospice are routine home care (RHC) days, representing about 97 percent of the services provided by a hospice. Therefore, the number of RHC days can be used as a proxy for the size of the hospice, that is, the more days of care provided, the larger the hospice. As discussed in the August 4, 2005 final rule, we currently use three size designations to present the impact analyses. The three categories are: (1) Small agencies having 0 to 3,499 RHC days; (2) medium agencies having 3,500 to 19,999 RHC days; and (3) large agencies having 20,000 or more RHC days. The FY 2011 updated wage data without any BNAF reduction are anticipated to decrease payments to small and large hospices by 0.2 percent, and to decrease payments to medium hospices by 0.1 percent (column 3); the updated wage data and the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent) are anticipated to decrease estimated payments to small and medium hospices by 0.7 percent, and to large hospices by 0.8 percent (column 4); and finally, the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the 2.6 percent hospital market basket update are projected to increase estimated payments by 1.8 percent for small and large hospices, and by 1.9 percent for medium hospices (column 5).
Column 3 of Table 1 shows that the updated wage data without the BNAF reduction would result in a small reduction in estimated payments. Urban hospices are anticipated to experience a decrease of 0.2 percent, while rural hospices will experience a decrease of 0.3 percent. Urban hospices can anticipate an increase of 1.0 percent in the Mountain region, of 0.5 percent in New England, of 0.2 percent in the Pacific region, and of 0.1 percent in the West North Central region. The remaining urban regions are anticipated to experience a decrease of 0.4 percent in the Middle Atlantic, East North Central, West South Central regions, and a decrease of 0.5 in the South Atlantic, East South Central, and Outlying regions.
Column 3 shows that for rural hospices, Outlying regions are anticipated to experience no change. The Middle Atlantic and East South Central regions are anticipated to experience an increase of 0.1 percent, while the Mountain region is anticipated to experience an increase of 0.8 percent. The remaining 6 rural regions are anticipated to experience a decrease ranging from 0.2 percent in the South Atlantic to 1.3 percent in New England.
Column 4 shows the combined effect of the updated wage data and the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent) on estimated payments, as compared to the FY 2010 estimated payments using a BNAF with a 10 percent reduction. Overall urban and rural hospices are both anticipated to experience a 0.8 percent decrease in payments. Mountain urban hospices are anticipated to see a payment increase of 0.4 percent. All other urban hospices are anticipated to experience a decrease in payment ranging from 0.1 percent in the New England region to 1.0 percent in the Middle Atlantic, South Atlantic, East North Central, East South Central, and West South Central regions.
Rural hospices are estimated to experience an increase in payments of 0.3 percent in the Mountain region, while Outlying regions are estimated to experience no change in payments. The remaining rural hospices are anticipated to experience estimated decreases in payment ranging from 0.2 percent in the East South Central region to 1.9 percent in the New England region.
Column 5 shows the combined effects of the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the 2.6 percent hospital market basket update on estimated payments as compared to the estimated FY 2010 payments. Note that the FY 2010 payments had a 10 percent BNAF reduction applied to them. Overall, urban and rural hospices are anticipated to experience a 1.8 percent increase in payments. Urban hospices are anticipated to experience an increase in estimated payments in every region, ranging from a 1.5 percent increase in the South Atlantic region to a 3.0 percent increase in the Mountain region. Rural hospices in every region are estimated to see an increase in payments ranging from 0.7 percent in the New England region to 2.9 percent in the Mountain region.
Column 3 demonstrates the effect of the updated wage data on FY 2011 estimated payments with an additional 15 percent BNAF reduction, for a total BNAF reduction of 25 percent, versus FY 2010 estimated payments which included a 10 percent BNAF reduction. We anticipate that using the updated wage data would decrease estimated payments to voluntary (non-profit) and government hospices by 0.1 percent. We estimate a decrease in payments for proprietary (for-profit) hospices of 0.3 percent.
Column 4 demonstrates the combined effects of the updated wage data and of the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent). Estimated payments to voluntary (non-profit) hospices are anticipated to decrease by 0.7 percent, while government hospices are anticipated to experience decreases of 0.6 percent. Estimated payments to proprietary (for-profit) hospices are anticipated to decrease by 0.8 percent.
Column 5 shows the combined effects of the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the 2.6 percent hospital market basket update on estimated payments, comparing FY 2011 to FY 2010 (using a BNAF with a 10 percent reduction). Estimated FY 2011 payments are anticipated to increase by 1.9 percent for voluntary (non-profit) and government hospices, and by 1.8 percent for proprietary (for-profit) hospices.
Column 3 demonstrates the effect of using the updated wage data, comparing estimated payments for FY 2011 to FY 2010 (using a BNAF with a 10 percent reduction). Estimated payments are anticipated to decrease by 0.1 percent for home health agency based hospices. Freestanding and hospital based providers are anticipated to experience a 0.2 percent decrease in estimated payments. Hospices based out of skilled nursing facilities are anticipated to experience a decrease in estimated payments of 0.5 percent.
Column 4 shows the combined effects of the updated wage data and reducing the BNAF by an additional 15 percent (for a total BNAF reduction of 25 percent), comparing estimated payments for FY 2011 to FY 2010 (using a BNAF with a 10 percent reduction). Skilled nursing facility based hospices are estimated to see a 1.1 percent decrease, freestanding hospices are estimated to see a 0.8 percent decrease, and hospital
Column 5 shows the combined effects of the updated wage data, the additional 15 percent BNAF reduction (for a total BNAF reduction of 25 percent), and the 2.6 percent hospital market basket update on estimated payments, comparing FY 2011 to FY 2010 (using a BNAF with a 10 percent reduction). Estimated payments are anticipated to increase by 1.4 percent for skilled nursing based facilities, to increase by 1.8 percent for freestanding and hospital-based providers, and to increase by 1.9 percent for home health agency based providers.
This notice with comment period only affects Medicare hospice providers, and therefore has no effect on other provider types.
This notice with comment period only affects Medicare hospice providers, and therefore has no effect on Medicaid programs. As described previously, estimated Medicare payments to hospices in FY 2011 are anticipated to decrease by $30 million due to the update in the wage index data itself, and to decrease by $80 million due to the total 25 percent reduction in the BNAF. However, the market basket update of 2.6 percent is anticipated to increase Medicare payments by $330 million. Therefore the total effect on Medicare hospice payments is estimated to be a $220 million increase. The market basket update and associated FY 2011 payment rates will be officially communicated this summer through an administrative instruction.
As required by OMB Circular A-4 (available at
In accordance with the provisions of Executive Order 12866, this notice with comment period was reviewed by the Office of Management and Budget.
Securities and Exchange Commission.
Concept release; request for comments.
The Commission is publishing this concept release to solicit comment on various aspects of the U.S. proxy system. It has been many years since we conducted a broad review of the system, and we are aware of industry and investor interest in the Commission's consideration of an update to its rules to promote greater efficiency and transparency in the system and enhance the accuracy and integrity of the shareholder vote. Therefore, we seek comment on the proxy system in general, including the various issues raised in this release involving the U.S. proxy system and certain related matters.
Comments should be received on or before October 20, 2010.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Raymond A. Be or Lawrence A. Hamermesh, Division of Corporation Finance, at (202) 551-3500, Susan M. Petersen or Andrew Madar, Division of Trading & Markets, at (202) 551-5777, Holly L. Hunter-Ceci or Brian P. Murphy, Division of Investment Management, at (202) 551-6825, or Joshua White, Division of Risk, Strategy, and Financial Innovation, at (202) 551-6655, 100 F Street, NE., Washington, DC 20549.
Regulation of the proxy solicitation process is one of the original responsibilities that Congress assigned to the Commission in 1934. The Commission has actively monitored the proxy process since receiving this
During many of these previous proxy-related rulemakings, commentators raised concerns about the proxy system as a whole.
Accordingly, in this release, we are reviewing and seeking public comment as to whether the U.S. proxy system as a whole operates with the accuracy, reliability, transparency, accountability, and integrity that shareholders and issuers should rightfully expect. With over 600 billion shares voted every year at more than 13,000 shareholder meetings,
The manner in which proxy materials are distributed and votes are processed and recorded involves a level of complexity not generally understood by those not involved in the process. This complexity stems, in large part, from the nature of share ownership in the United States, in which the vast majority of shares are held through securities intermediaries such as broker-dealers or banks; this structure supports prompt and accurate clearance and settlement of securities transactions, yet adds significant complexity to the proxy voting process.
We begin this concept release with an overview of the U.S. proxy system. We then outline some of the concerns that have been raised regarding the accuracy, reliability, transparency, accountability, and integrity of this system, as well as possible regulatory responses to these concerns. These concerns generally relate to three principal questions:
• Whether we should take steps to enhance the accuracy, transparency, and efficiency of the voting process;
• Whether our rules should be revised to improve shareholder communications and encourage greater shareholder participation; and
• Whether voting power is aligned with economic interest and whether our disclosure requirements provide investors with sufficient information about this issue.
In reviewing the performance of the proxy system, the Commission's staff has recently had numerous discussions with a variety of participants in the proxy voting process, and we appreciate the insights these participants have provided.
We are mindful that, while we have recently amended—and are considering amending—a number of our rules that relate to the proxy process, further amendments to those rules or additional guidance about our views on their application may be appropriate to address concerns raised by the application of those rules. Although the discussion in this release generally focuses on the broader proxy system, we remain interested in ways to improve our proxy disclosure, solicitation, and distribution rules. We seek public comment on the concerns about those rules.
A fundamental tenet of state corporation law is that shareholders have the right to vote their shares to elect directors and to approve or reject major corporate transactions at shareholder meetings.
The proxy solicitation process starts with the determination of who has the right to receive proxy materials and vote on matters presented to shareholders for a vote at shareholder meetings. The method for making this determination depends on the way the shares are owned. There are two types of security holders in the U.S.—registered owners and beneficial owners.
Registered owners (also known as “record holders”) have a direct relationship with the issuer because their ownership of shares is listed on records maintained by the issuer or its transfer agent.
Registered owners can hold their securities either in certificated form
The vast majority of investors in shares issued by U.S. companies today are beneficial owners, which means that they hold their securities in book-entry form through a securities intermediary, such as a broker-dealer or bank.
The following diagram illustrates the flow of proxy materials that typically occurs during a solicitation. The steps illustrated in the diagram and descriptions of the relevant parties are discussed below.
It is a relatively simple process for an issuer to send proxy materials to registered owners because their names and addresses are listed in the issuer's records, which are usually maintained by a transfer agent. As the left side of Diagram 1 illustrates, proxy materials are sent directly from the issuer through its transfer agent or third-party proxy service provider to all registered owners in paper or electronic form.
As the right side of Diagram 1 illustrates, the process of distributing proxy materials to beneficial owners is more complicated than it is for registered owners. The indirect system of ownership in the U.S. permits securities intermediaries to hold securities for their customers, and there can be multiple layers of securities intermediaries leading to one beneficial owner. This potential for multiple tiers of securities intermediaries presents a number of challenges in the distribution of proxy materials.
In most cases, the chain of ownership for beneficially owned securities of U.S. companies begins with the Depository Trust Company (“DTC”), a registered clearing agency acting as a securities depository.
Once an issuer establishes a date for the shareholder meeting and a record date for shareholders entitled to vote on matters presented at the meeting, it sends a formal announcement of these dates to DTC, which DTC forwards to all of its participants.
For each shareholder meeting, DTC executes an “omnibus proxy”
Once the issuer identifies the DTC participants holding positions in its securities, it is required to send a search card
Commission rules require broker-dealers to respond to the issuer within seven business days with the approximate number of customers of the broker-dealer who are beneficial owners of the issuer's securities.
Once the search card process is complete, the issuer should know the approximate number of beneficial owners owning shares through each securities intermediary. The issuer must then provide the securities intermediary, or its third-party proxy service provider, with copies of its proxy materials (including, if applicable, a Notice of Internet Availability of Proxy Materials) for forwarding to those beneficial owners. The securities intermediary must forward these proxy materials to beneficial owners no later than five business days after receiving such materials.
Instead of receiving and executing a proxy card (as registered owners receive and do), the beneficial owner receives a “voting instruction form” or “VIF” from the securities intermediary, which permits the beneficial owner to instruct the securities intermediary how to vote the beneficially owned shares. Although the VIF does not give the beneficial owner the right to attend the meeting, a beneficial owner typically can attend the meeting by requesting the appropriate documentation from the securities intermediary.
Once the proxy materials have been distributed to the registered owners and beneficial owners of the securities, the means by which shareholders vote their shares differs. As Diagram 1 illustrates, registered owners execute the proxy card and return it to the vote tabulator, either by mail, by phone, or through the Internet. Beneficial owners, on the other hand, indicate their voting instructions on the VIF and return it to the securities intermediary or its proxy service provider, either by mail, by phone, or through the Internet.
In certain situations, a broker-dealer may use its discretion to vote shares if it does not receive instructions from the beneficial owner of the shares. Historically, broker-dealers were generally permitted to vote shares on uncontested matters, including uncontested director elections, without instructions from the beneficial owner.
Issuers, securities intermediaries, and shareholders often retain third parties to perform a number of proxy-related functions, including forwarding proxy materials, collecting voting instructions, voting shares, soliciting proxies, tabulating proxies, and analyzing proxy issues.
Issuers are required to maintain a record of security holders for state law purposes
To facilitate the proxy material distribution and voting process for beneficial owners, securities intermediaries typically retain a proxy service provider to perform a number of processing functions, including forwarding the proxy materials by mail or electronically and collecting voting instructions.
Issuers sometimes hire third-party proxy solicitors to identify beneficial owners holding large amounts of the issuers' securities and to telephone shareholders to encourage them to vote their proxies consistent with the recommendations of management. This often occurs when there is a contested election of directors, and issuer's management and other persons are competing for proxy authority to vote securities in the election (commonly referred to as a “proxy contest”). In addition, an issuer may hire a proxy solicitor in uncontested situations when voting returns are expected to be insufficient to meet state quorum requirements or when an important matter is being considered. Issuers and other soliciting persons are required to disclose the use of such services and estimated costs for such services in their proxy statements.
Under many state statutes, an issuer must appoint a vote tabulator (sometimes called “inspectors of elections” or “proxy tabulators”) to collect and tabulate the proxy votes as well as votes submitted by shareholders in person at a meeting.
Institutional investors typically own securities positions in a large number of issuers. Therefore, they are presented annually with the opportunity to vote on many matters and often must exercise fiduciary responsibility in voting.
Investor and issuer interests may be undermined when perceived defects in the proxy system—or uncertainties about whether there are any such defects—are believed to impair its accuracy, transparency, and cost-efficiency. Because even the perception of such defects can lead to lack of confidence in the proxy process, we seek to explore concerns that have been expressed about the accuracy, transparency, and efficiency of that process and ways in which those concerns might be addressed.
On occasion, vote tabulators (including transfer agents acting in that capacity) receive votes from a securities intermediary that exceed the number of shares that the securities intermediary is entitled to vote. The extent to which such votes are accepted depends on instructions from the issuer, state law, and the vote tabulator's internal policies. For example, it is our understanding that some vote tabulators accept votes from a DTC participant on a “first-in” basis up to the aggregate amount indicated in DTC's records—that is, once the votes cast by the participant exceed the number of positions indicated on the securities position listing, the vote tabulator will refuse to accept any votes subsequently remitted. Conversely, other vote tabulators, we understand, refuse to accept any votes from a securities intermediary if the aggregate number of votes submitted exceeds the vote tabulator's records for that intermediary.
In an attempt to address issuers' concerns about the potential for over-voting, securities intermediaries and their service providers have implemented systems that compare the number of votes submitted by a securities intermediary to its ownership positions as reflected in DTC's records and notify that securities intermediary when it has submitted votes in excess of its ownership positions. The securities intermediary may then adjust its vote to reflect the correct number of votes before the service provider submits that vote to the vote tabulator.
For securities held at DTC, a DTC participant may vote only the number of securities held by that participant in its DTC account on the record date for a shareholder meeting. Sometimes the number of securities of a particular issuer held in the DTC participant's account will be less than the number of securities that the DTC participant has credited in its own books and records to its customers' accounts. Although there may be many reasons why the number of securities held by a broker-dealer at DTC does not match the total number of securities credited to the broker-dealer's customers' accounts, as discussed in more detail below, this situation principally arises in connection with lending transactions and “fails to deliver”
Because of the way broker-dealers track securities lending transactions,
When a customer purchases shares on margin, a portion of the securities in the customer's account may be used to collateralize the margin loan.
Stock loan agreements typically transfer to the borrower the right to vote the borrowed securities.
Even though a broker-dealer has the ability to lend its customers' margin securities pursuant to a stock loan agreement, because shares are held in fungible bulk, it may not be practical to inform a customer when an actual loan has been made and it may be unclear which lending investor has lost the right to vote. Therefore, a customer may expect to vote all of its securities because it does not necessarily know whether its securities have in fact been loaned. If the lending broker-dealer does not allocate a certain number of shares to a lending investor as having been borrowed, but instead sends a VIF indicating that the lending investor has the right to vote all of the securities credited to its account, including the loaned margin securities, both the lending and borrowing broker-dealers may submit voting instructions from two customers for a single share, which may give rise to an over-voting situation.
An imbalance between a securities intermediary's position reflected on the securities position listing and the position reflected in its own books and records may also occur because of fails to deliver in the clearance and settlement system.
Pursuant to NSCC rules, if an NSCC broker-dealer member “fails to deliver” the securities it owes to NSCC on the settlement date, NSCC will allocate this fail to one of many contra-side broker-dealers due to receive securities without trying to attribute the fail to the specific broker-dealer that originally traded with the broker-dealer that failed to deliver.
Even though the broker-dealer has not actually received the securities, the broker-dealer usually will credit its customers' accounts with the purchased securities on settlement date. If the broker-dealer's fail-to-receive position continues through the record date for a corporate election, DTC may not yet recognize the broker-dealer's entitlement to vote this position. As with loaned securities, the broker-dealer may still try to allocate votes to all of its customers that its records reflect as owning those securities, even though DTC has not credited the broker's account with those securities or with the corresponding right to vote those securities through DTC.
Because the ownership of individual shares held beneficially is not tracked in the U.S. clearance and settlement system, when imbalances occur, broker-dealers must decide which of their customers will be permitted to vote and how many shares each customer will be permitted to vote. Neither our rules nor SRO rules currently mandate that a reconciliation be performed, or the use of a particular reconciliation or allocation methodology. Broker-dealers have developed a number of different approaches as to how votes are “allocated” among customer accounts.
Most broker-dealers have adopted a reconciliation method to balance the aggregate number of shares they are entitled to vote with the aggregate number of shares credited to customer and proprietary accounts.
A broker-dealer using the pre-reconciliation method compares the number of shares it holds in aggregate at DTC and elsewhere with its aggregate customer account position before it sends VIFs to its customers.
Broker-dealers using the pre-reconciliation method have indicated that this method ensures that the votes customers cast will be counted.
A broker-dealer using the post-reconciliation method compares its aggregate position at DTC and elsewhere
In the event that a broker-dealer receives voting instructions from its customers in excess of its aggregate securities position, the broker-dealer adjusts its vote count prior to casting its vote with the issuer. The manner in which the adjustment is made varies among broker-dealers. Some firms simply reduce the number of proprietary position votes cast. Others allocate fewer votes to customers with securities purchased on margin or on loan.
Because of the low level of participation by retail voters, some of the broker-dealers using the post-reconciliation method have indicated to the Commission that the number of over-vote situations is not a significant problem and can be addressed in a number of ways, including, but not limited to, the broker-dealer using its proprietary positions to redress any imbalance. The costs associated with the post-reconciliation method are generally considered to be less than those associated with the pre-reconciliation method because the broker-dealer does not have to go through the costly process of allocating votes among customers unless its customers remit VIFs for more shares than the broker-dealer is entitled to vote in the aggregate.
Some broker-dealers have developed hybrid reconciliation methods that use aspects of both pre- and post-reconciliation methods. For example, in one hybrid reconciliation method, a broker-dealer will allocate votes to all of its customers with fully-paid securities but will also allow each margin account customer to instruct the broker-dealer that it would like to vote its shares. The broker-dealer will allocate any shares not needed to cover fully-paid account holders to those margin customers who indicated they wanted to vote, thereby giving these margin customers priority over other margin customers.
Broker-dealers have indicated to the Commission staff that most broker-dealers select an allocation and reconciliation method that best accommodates their particular customer base and best advances the firm's particular business strategy. For example, those firms focusing on retail customers generally will have more customer accounts owning smaller amounts of securities and casting relatively few votes and, as a result, may prefer the post-reconciliation method over the pre-reconciliation method.
The customers of a broker-dealer may not be aware of the allocation and reconciliation method used by the firm. We are interested in receiving views on whether it would be helpful to investors if broker-dealers publicly disclosed the allocation and reconciliation method used by the firm during each proxy season, as well as the likely effect of that method on whether the customers' voting instructions would actually be reflected in the broker-dealer's proxy sent to the vote tabulator. Such disclosure could be in writing and provided to customers upon opening an
Given the lack of empirical data on whether over-voting or under-voting is occurring and if so, to what extent, we also would like to receive views on whether investors, issuers, and the proxy system overall would benefit from having additional data from proxy participants regarding over-voting and under-voting to determine whether further regulatory action should be considered. This data would allow us to determine the scope of the problem, if any, and give us detailed information that would further assist us in determining whether current regulations are effective or additional regulation is appropriate. Such information may also indicate if one particular method is working better for investors and the market than other methods.
• What are the advantages or disadvantages of the various methods of allocation or reconciliation currently used by securities intermediaries and the effectiveness of such methods?
• Is there any evidence, statistical, anecdotal or otherwise, of material over-voting or under-voting, and if so, what is the size and impact of over-voting or under-voting? For example, is there any evidence that over-voting or under-voting has determined the outcome of a vote or materially changed the voting results?
• Are there any concerns caused by over-voting or under-voting that are not described above? Are there particular concerns regarding the impact of either over-voting or under-voting with respect to specific types of voting decisions, such as merger transactions, the election of directors where a majority vote is required, or shareholder advisory votes regarding executive compensation? What, if any, alternatives should we consider to the current system, and what would be the costs and benefits of any alternative process?
• Would requiring broker-dealers to disclose their allocation and reconciliation process adequately address the concerns related to over-voting and under-voting by beneficial owners?
• Would information about vote allocation and reconciliation methods be helpful to investors or adequately address any concerns related to those processes?
• Would a particular type of vote allocation and reconciliation method better protect investors' interests?
• Do the varying methods of vote allocation affect the potential to audit votes cast by beneficial holders?
• Should investors who have fully paid for their securities be allocated voting rights over those who purchased the securities on margin? Should beneficial holders be allocated voting rights over broker-dealer proprietary accounts?
• Should brokers be required to disclose the effect of share lending programs on the ability of retail investors to cast votes?
• Does the current system of settlement and clearance of securities transactions in the U.S. create any problems or inefficiencies in the proxy process in regard to matters other than over-voting or under-voting? If so, what are they, and what steps should we consider in order to address them?
A number of market participants, including both individual and institutional investors, have raised concerns regarding the inability to confirm whether an investor's shares have been voted in accordance with the investor's instructions. As discussed more fully in Section II, beneficial owners cast their votes through a securities intermediary, which, in turn, uses a proxy service provider to collect and send the votes to the vote tabulator.
The inability to confirm voting information is caused in part because no one individual participant in the voting process—neither issuers, transfer agents, vote tabulators, securities intermediaries, nor third party proxy service providers—possesses all of the information necessary to confirm whether a particular beneficial owner's vote has been timely received and accurately recorded. A number of market participants contend that some proxy service providers, transfer agents, or vote tabulators are unwilling or unable to share voting information with each other or with investors and securities intermediaries. There are currently no legal or regulatory requirements that compel these entities to share information with each other in order to allow for vote confirmations.
The inability to confirm that votes have been timely received and accurately recorded creates uncertainty regarding the accuracy and integrity of votes cast at shareholder meetings. At a time when votes on matters presented to shareholders are increasingly meaningful and consequential to all shareholders, this lack of transparency could potentially impair confidence in the proxy system.
In the Commission's view, both record owners and beneficial owners should be able to confirm that the votes they cast have been timely received and accurately recorded and included in the tabulation of votes, and issuers should be able to confirm that the votes that they receive from securities intermediaries/proxy advisory firms/
One possible solution may be for all participants in the voting chain to grant to issuers, or their transfer agents or vote tabulators, access to certain information relating to voting records, for the limited purpose of enabling a shareholder or securities intermediary to confirm how a particular shareholder's shares were voted. To protect the identities of objecting beneficial owners from issuers, a system could assign each beneficial owner a unique identifying code, which could then be used to create an audit trail from beneficial owner to proxy service provider to transfer agent/vote tabulator. Issuers (or their agents, such as transfer agents or vote tabulators) would, in turn, confirm to record owners, beneficial owners, and securities intermediaries upon request that any particular votes cast by them or on their behalf have been received and voted as instructed. This process could be fully automated such that a vote confirmation could be provided by the issuer (or its agent) to the record owner or, in the case of beneficial owners, to the securities intermediary or proxy service provider and sent by e-mail to the beneficial owner.
Confirmation of the vote information may also facilitate the ability of market participants and state and federal regulatory authorities or courts to ascertain the accuracy of a particular election or the overall proxy system. Moreover, transparency of the process should promote investor confidence as well.
• To what extent have shareholders had difficulty in confirming whether their submitted votes have been tabulated? To what extent have issuers had difficulty in determining whether the votes submitted by securities intermediaries/proxy advisory firms/proxy service providers accurately reflect the voting instructions submitted by beneficial owners?
• To what extent do investors believe that their votes have not been accurately transmitted or tabulated, and what is the basis for such belief? Is there sufficient information about the ways that investors actually place their votes, for example, by telephone, on paper, or via the Internet?
• Should all participants in the voting chain grant access to their share voting records to issuers and their transfer agents/vote tabulators, for the limited purpose of enabling confirmation of a shareholder's vote? What are the benefits and costs associated with sharing such information?
• What is the best way to preserve any continuing anonymity of those investors who choose not to have their identities disclosed to the issuer?
• Would the creation of a unique identifier for each beneficial owner be feasible? Would such a system achieve the objective of allowing record owners and beneficial owners to confirm that their vote was cast in accordance with their instructions and confirm the number of shares cast on their behalf? What are the costs and benefits associated with such a system?
• Should issuers (and their agents) confirm to registered owners, beneficial owners, or securities intermediaries that the issuer has received and properly tabulated their votes? Should this confirmation be limited to an informal confirmation that votes have been counted, or should shareholders be able to obtain some form of proof that their votes have been counted? What type of documentation would constitute sufficient proof? What are the benefits and costs of such alternatives? Are there other steps that would enable beneficial owners to verify that their votes have been counted?
• Should investors also be able to obtain access to share voting records for the limited purpose of enabling an audit of the shareholder vote?
• Should issuers and securities intermediaries (and their agents) be required to reconcile and verify voting at the beneficial owner level? Would this be consistent with state law, which vests voting rights in the registered owner? Would other reconciliation and verification requirements be consistent with the purposes underlying state law?
• Should proxy participants periodically evaluate and test the effectiveness of their voting controls and procedures? If so, to whom should the results of these tests or the participants' conclusions on effectiveness be disclosed? Should disclosure be to the Commission, to clients, or also to the public?
Institutional securities lenders play a significant role in the proxy voting process, and we believe that it is important to evaluate the impact of their share lending on that process, and to consider ways in which the efficacy and transparency of share voting on the part of such institutions could potentially be improved. In particular, and as discussed below, we seek to examine whether decisions to recall loaned securities in connection with shareholder votes might be more timely and better informed. We also seek to examine whether increased disclosure of the votes cast by institutional securities lenders might improve the transparency of the voting process.
Many institutions with investment portfolios of securities—such as insurance companies, pension funds, mutual funds, and college endowments—engage in securities lending to earn additional income on securities that would otherwise be sitting idle in their portfolios. When an institution lends out its portfolio securities, all incidents of ownership relating to the loaned securities, including voting rights, generally transfer to the borrower for the duration of the loan.
Some institutional securities lenders have proxy voting policies that require the lender, in the event of a material vote, to get back the loaned securities in order to vote the proxies.
We understand that some institutional securities lenders may try to obtain timely information about meeting agendas through a variety of informal means, including media reports. We are also told, however, that this informal process is not an effective substitute for a formal process that would alert securities lenders to the matters to be voted on at shareholder meetings in time to terminate the loan and receive the loaned securities. We understand that, in some instances, securities lenders learn of material votes too late to recall the loans to vote the proxies.
In considering possible solutions, we note that, under Section 401.02 of the NYSE Listed Company Manual, NYSE-listed issuers must provide the exchange with notice of the record and meeting dates for shareholder meetings at least ten days prior to the record date for the meeting, unless it is not possible to do so. That notice must describe the matters to be voted upon at the meeting, unless it is accompanied by printed material being sent to shareholders which describes those matters. We understand, however, that this formal notice is not disseminated to the public and may not contain specific descriptions of all matters to be voted on at the meeting.
Consequently, one possible regulatory response is to ask the NYSE to revise its rules to require public dissemination of a notice, in advance of the record date, that contains information about the record and meeting dates as well as specific descriptions of all matters to be voted upon. Other SROs could also be asked to adopt similar rules. An alternative possibility is a requirement for all issuers subject to our proxy rules to disclose the agenda by public means, such as by filing a report on Form 8-K (or as an alternative to such a filing requirement, permitting the issuance of a press release or a posting on a corporate Web site).
In identifying these alternatives, we are mindful that it can be difficult for issuers to disclose complete meeting agendas in advance of the record date because the agenda may not be established at that time for a variety of reasons, including board consideration of initiatives proposed by management and Commission staff review of no-action requests regarding Rule 14a-8 shareholder proposals.
• Should the Commission propose a rule to require issuers to disclose publicly the meeting agenda sufficiently in advance of the record date to permit securities lenders to determine whether any of the matters warrant a termination of the loan so that they may vote the proxies? If so, how many days would constitute sufficient notice to the public?
• What are the advantages and disadvantages, practical and as a matter of policy, to requiring issuers to provide this advance notice to the public? For instance, would the issuer know, sufficiently in advance, all of the items to be on the agenda, particularly shareholder proposals which may be the subject of a request for no-action relief being considered by the Commission's staff?
• Would a mechanism that alerts lending shareholders to meeting agendas well in advance of record dates have positive and desirable effects on the proxy solicitation system such that the Commission should encourage and facilitate this? Would such a mechanism increase the number of lenders recalling loans, and result in greater loan instability, with adverse effects on the capital markets? If there are competing interests, which should prevail, and why?
• How could an advance notice requirement be effected? Should the Commission propose rules applicable to all issuers subject to the proxy rules? Or, should the SROs amend or adopt listing standards requiring their listed issuers to provide advance notice to the public of record and meeting dates and specific descriptions of all matters to be voted on at the shareholder meeting?
• If we required advance notice, through what medium should such notice to shareholders be made? Should issuers be required to issue a press release or make a company Web site posting in addition to filing a notice with the Commission? Would such notice be sufficient for shareholders?
• We also request data regarding the recall of loaned securities by institutional shareholder lenders in order to vote the shares. Please include information regarding the circumstances in which the recalls did and did not occur, and whether the shares were ultimately voted.
Management investment companies registered under the Investment Company Act (collectively, “funds”) are required to disclose on Form N-PX how they vote proxies relating to portfolio securities.
As noted above, when a fund lends its portfolio securities, all incidents of ownership relating to the loaned securities, including proxy voting rights, generally transfer to the borrower for the duration of the loan.
Currently, Form N-PX requires disclosure of proxy voting information “for each matter relating to a portfolio security considered at any shareholder meeting held during the period covered by the report and with respect to which
We seek to examine whether Form N-PX should be amended to require disclosure of the actual number of votes cast by funds.
• Should Form N-PX require disclosure of the actual number of shares voted? Should Form N-PX require disclosure of the number of portfolio securities for which a fund did not vote proxies because the securities were on loan or for other reasons?
• What would be the costs to funds of disclosing the actual number of proxy votes? What would be the costs to funds of disclosing the number of portfolio securities for which a fund did not vote proxies?
One of the most persistent concerns that has been expressed to the Commission's staff, particularly by issuers, involves the structure and size of fees charged for the distribution of proxy materials to beneficial owners.
Pursuant to Exchange Act Rules 14b-1 and 14b-2, respectively, broker-dealers and banks must distribute certain materials received from an issuer or other soliciting party to their customers who are beneficial owners of securities of that issuer. These materials include proxy statements, information statements, annual reports, proxy cards, and other proxy soliciting materials.
In adopting these rules, we did not determine what constituted “reasonable expenses” that were eligible for reimbursement. Rather, the SROs submitted rule filings with us pursuant to Section 19(b) of the Exchange Act to establish these amounts.
Since 1937, the New York Stock Exchange has required issuers, as a matter of policy, to reimburse its members for out of pocket costs of forwarding proxy materials.
Currently, the rates set by the NYSE for the forwarding of an issuer's proxy materials include:
• A “Base Mailing Fee” of $0.40 for each beneficial owner account when there is not an opposing proxy (the “Base Mailing Fee”). This fee applies for each set of proxy materials, regardless of whether the materials have been mailed or the mailing has been suppressed or eliminated.
• An “Incentive Fee” of $0.25 per beneficial owner account for issuers whose securities are held by many beneficial owners and $0.50 per account for issuers with few beneficial owners.
• A “Nominee Coordination Fee” of $20 per “nominee”—
• An additional “Nominee Coordination Fee” of $0.05 per beneficial owner account for issuers whose securities are held by many beneficial owners
Base Mailing Fee of 10,000 accounts × $0.40 per account, or $4,000;
Incentive Fee of 5,000 accounts suppressed × $0.50 per account, or $2,500 (assuming 50% of the accounts are eligible for the incentive fee);
Nominee Coordination Fee of 10 securities intermediaries × $20 per intermediary, or $200; and
Additional Nominee Coordination Fee of 10,000 accounts × $0.10 per account, or $1,000.
While a member organization, such as a securities intermediary, may seek reimbursement for less than the approved rates, it may not seek reimbursement for an amount higher than the approved rates listed in Rule 465, or for items or services not enumerated in Rule 465, “without the prior notification to and consent of the person soliciting proxies or the issuer.”
When the fees were approved in 2002, we expected the NYSE “to continue its ongoing review of the proxy fee process, including considering alternatives to SRO standards that would provide a more efficient, competitive, and fair process.”
In 2006, the Proxy Working Group considered the NYSE's current fee structure and indicated that Rule 465's fees “may be expensive to issuers but generally result[] in shareholders receiving and being able to vote proxies in a timely manner. This is an important benefit of the current system.”
After the NYSE fee structure for proxy distribution was established on a permanent basis in 2002, other SROs adopted similar rules. For example, the NYSE Amex LLC (“Amex”) and the Financial Industry Regulatory Authority, Inc. (“FINRA”) revised their rules (Amex Rule 576, Amex Section 722 of the Amex Company Guide, and NASD IM-2260, respectively) to adopt similar provisions.
Neither the NYSE nor any other SRO has established maximum fees that member firms may charge issuers for deliveries of proxy materials using the notice and access method. The majority of broker-dealers have contracts with one proxy service provider to distribute proxies to beneficial owners.
As noted above, broker-dealers generally outsource their delivery obligations to proxy service providers.
It is our understanding that Broadridge currently bills issuers, on behalf of its broker-dealer clients, the maximum fees allowed by NYSE Rule 465.
Several other issues concerning the appropriateness of fees have also been raised in recent years. For example, it is our understanding that, once a paper mailing is suppressed, the securities intermediary, or its agent, collects the Incentive Fee, not only for the year in which the shareholder makes that election, but also for every subsequent year, even though the continuing role of the securities intermediary, or its agent, in eliminating these paper mailings is limited to keeping track of the shareholder's election.
In summary, many issues have been raised about fees, focusing mostly on whether the current fee structure for delivering proxy materials to beneficial owners reflects reasonable rates of reimbursement.
We have previously recognized the potential benefits of allowing the marketplace, rather than SRO rules and guidelines, to determine reasonable rates of reimbursement for the distribution of proxy materials. As noted above, at the time of adoption of the current fee structure, we did not expect that the discussion of reasonable rates of reimbursement would end. Rather, we noted that market forces should ultimately determine competitive and reasonable rates of reimbursement, and urged the NYSE to identify ways to achieve this goal, consistent with the continued protection of shareholder voting rights in a competitive marketplace for proxy distribution.
In addition, we recognize the importance of maintaining a proxy distribution system that is efficient, reliable, and accurate. We note that various groups have previously attested to the efficiency, reliability, and accuracy of the current proxy distribution system.
One alternative that has been suggested by a commentator is the creation of a central data aggregator that is given the right to collect beneficial owner information from securities intermediaries, but is required to provide that information to any agent designated by the issuer.
Some of the other potential regulatory responses discussed in this release also would affect the current system of distributing proxy materials and, therefore, the process of setting proxy distribution fees. For instance, adopting a system under which securities intermediaries grant proxies to underlying beneficial owners (as discussed in Section III.A) would permit issuers to negotiate fees and services with proxy service providers because the issuers would be directly soliciting proxies from those beneficial owners.
• Does the current fee/rebate structure reflect reasonable expenses? Why or why not? If not, how should these rates be revised?
• Should the fee structure allow for reimbursement of the Incentive Fee on an ongoing basis once the paper mailings have already been eliminated?
• How are proxy distribution fees billed with respect to separately managed accounts? Should certain kinds of accounts, such as separately managed accounts, where multiple beneficial owners may delegate their voting decisions to a single investment manager, be eligible for different treatment under the current fee structure?
• Are separately managed accounts different from “wrap” accounts for which issuers may not be charged suppression fees for providing proxy communication services to holders of WRAP accounts?
• Does the current fee structure discourage issuers from communicating with beneficial owners beyond delivery of the required proxy materials?
• Should there be an independent third-party audit of the current fee structure, as recommended by the Proxy Working Group?
• Do broker-dealers using a proxy service provider incur costs that justify rebates from the proxy service provider? If so, what are the costs, can they be quantified, and are they commensurate with the payments received from the proxy service provider? Do these costs exist only for larger broker-dealers or for broker-dealers of all sizes? Should the current rebates between Broadridge and larger broker-dealers be permitted under the current fee structure? Should current contractual arrangements between proxy service providers and their clients affect the determination of whether fees are fair and reasonable?
• Currently, SRO rules do not set rates for reimbursement of expenses associated with the notice and access model. In the absence of SRO rules, on what basis do market participants currently determine whether the reimbursement of expenses associated with the notice and access model is, in fact, reasonable?
• Should the current fee structure that is set forth in SRO rules be revised to include fees for notice and access delivery? If so, what fees for the notice and access model might constitute “reasonable reimbursement?”
• Does the current proxy distribution system—in which the proxy service provider is selected by a broker-dealer but paid by the issuer—create a lack of incentives to reduce costs for issuers? Should the issuer have more control over the selection and payment of the proxy service provider, and if so, what alternatives to the current system would facilitate this? What are the potential benefits and drawbacks of such alternatives?
• What factors are currently affecting the level of competition in the market for proxy service providers and their fees? What principles should guide the Commission's current consideration of competition among proxy service providers? Would multiple competing service providers affect the quality of service?
• What steps would be necessary to enable prices to be based on competitive market forces? What are the potential benefits and drawbacks of moving to a system where prices are determined by competitive market forces? What effect, if any, would this have in terms of accuracy, accountability, reliability, cost, and efficiency of the proxy distribution system? Would a market-based model increase or decrease costs for issuers? Would cost increases or decreases be more likely for small to midsize issuers?
• If issuers were able to solicit proxies directly from beneficial owners, what effect would that likely have on proxy distribution costs? Would costs be reduced through the introduction of competition and better alignment of economic incentives? Or, could the loss of economies of scale increase costs? Would each issuer likely negotiate fees on its own with a proxy service provider? Would the impact be different for large, medium, or small issuers?
• What are the practical and legal implications of deregulating fees in light of the existing contracts between proxy service providers and broker-dealers? For example, would these contracts need to be re-negotiated?
• What are the potential merits and drawbacks of having a central data aggregator collect beneficial owner information from securities intermediaries? How would reimbursement to the aggregator, as the distributor of information, be determined?
• Would changes to the OBO/NOBO mechanism, or the creation of a central data aggregator, encourage competition in the proxy distribution sector? Would competition increase or lower costs? Would competition increase or decrease accountability?
• A number of investors have complained about the services of proxy service providers (and transfer agents performing similar functions). How are investors' interests addressed, if at all, in the selection of proxy service providers? Are the interests of investors in this process given adequate weight?
We first examine a number of concerns relating to the ability of issuers to communicate with shareholders, the level of shareholder participation in the proxy voting process, and the ability of investors to obtain and evaluate information pertinent to voting decisions. Because of the importance of shareholder voting, as discussed above, we seek additional information about ways in which issuer communications with shareholders, shareholder participation and shareholder use of information might be improved.
The first area of concern that we address arises out of the practice of holding securities in street name—that is, interposing securities intermediaries between issuers and the beneficial owners of their securities. This practice developed in order to facilitate the prompt and accurate processing of an increasingly large volume of securities transactions.
There is broad consensus
In light of recent developments in corporate governance, including the elimination of the broker discretionary vote on uncontested elections of directors, commentators have claimed a greater need for issuers to be able to communicate with their shareholders.
The history of our efforts to address the impediments to communication associated with our securities ownership system goes back more than three decades.
In 1976, we reported to Congress on the effects of the practice of holding securities in street name.
• Inquire of securities intermediaries whether other persons beneficially owned the securities they held of record; and
• Supply securities intermediaries with a sufficient number of sets of proxy materials to forward to beneficial owners.
To promote direct communication between issuers and their beneficial owners, we adopted rules in 1983, effective in 1985, to require broker-dealers and banks to provide issuers, at their request, with lists of the names and addresses of beneficial owners who did not object to having such information provided to issuers.
We understand that there are concerns about the cost and efficiency of the current system of communications between issuers and investors, including the following:
• Issuers have indicated to the staff that the majority of their street name securities are held by OBOs through securities intermediaries, making it very difficult to determine the identity and holdings of their investors. Issuers believe that the recent changes in corporate governance, including the move to majority voting of directors, the elimination of broker discretionary voting in uncontested director elections, and a possible drop in retail voting percentages,
• Issuers also have indicated to the staff that they face considerable expense in communicating with beneficial owners, either OBOs or NOBOs, indirectly through securities intermediaries or their agents. Issuers are required to reimburse securities intermediaries for expenses incurred in forwarding communications to beneficial owners. These expenses include reimbursement for postage, envelopes and communication expenses as well as fees to proxy service providers.
• Some issuers have claimed that the expense of obtaining the list of NOBOs from the securities intermediary or its proxy service provider deters some issuers, particularly widely-held issuers, from using the NOBO list to communicate with beneficial owners.
• We also have heard that issuers may desire more flexibility to design the proxy materials (
• Some issuers also have expressed concerns regarding potential quality control problems that have arisen, from time to time, with the services provided by proxy service providers. Similarly, retail investors have complained to our Office of Investor Education and Advocacy, from time to time, that proxy materials have been delivered late. To the extent that delivery of proxy materials is delayed, the utility of issuer-investor communication through the proxy process is impaired.
Many issuers, securities intermediaries and commentators believe that there can be more efficient and cost-effective ways for issuers to communicate directly with their shareholders. Some commentators have advocated for significant changes. The 2004 Business Roundtable rulemaking petition (“BRT Petition”)
In 2009, the Shareholder Communications Coalition
Others advocate less comprehensive change and encourage adoption of an approach in which an issuer would be entitled to a list of all beneficial owners, but only as of the record date for a particular meeting.
Others have suggested more gradual change.
In addition, there remains the issue of whether beneficial owners have a privacy right with respect to the disclosure of their ownership positions. We have been informed of a variety of privacy considerations: some investors, particularly institutional investors, select OBO status for competitive reasons, in order to mask their investment strategies; other investors may prefer OBO status in order to minimize the communications (particularly telephone calls) they receive regarding their investments.
As discussed above, we are considering whether regulatory action is needed to make it easier for issuers to communicate with their investors. In particular, we seek comment on whether we should eliminate the OBO/NOBO distinction, thereby making all beneficial owner information available to the issuer, or require broker-dealers to disclose the consequences of choosing OBO or NOBO status, or whether OBO or NOBO status should be the default choice. We also are exploring ways in which issuers can communicate directly with beneficial owners, such as requiring securities intermediaries to transfer proxy voting authority to some or all beneficial owners, so that issuers can solicit proxies directly from such holders. In this regard, we seek comment on the following questions:
• Do our existing rules inappropriately inhibit issuers from effectively communicating with investors? If so, what changes should we make to our rules to improve investor communication? Even if our rules do not inappropriately inhibit issuers from effectively communicating with investors, do the rules significantly raise the cost of communicating? Do any non-Commission rules inappropriately inhibit issuers from effectively communicating with investors? What are the benefits and costs of the various changes proposed by commentators?
• Do investors consider the degree and manner of communication with issuers to be adequate?
• To what extent are proxy materials not being delivered in a timely fashion? Are any changes in our rules or other rules required to improve timeliness of delivery, either with respect to registered or beneficial owners?
• What impact does the uniform appearance of proxy materials such as the VIF have on shareholder participation in proxy voting? Would investors, especially retail investors, be more likely to vote if there was less uniformity in the appearance of proxy materials?
• Is the format and layout of proxy cards and VIFs clear and easy to use from the perspective of investors? Could the layout be improved to enhance investor participation? Do the formats of proxy cards and VIFs appropriately set out the consequences of not voting or giving voting instructions on one or more specific matters?
• To what extent has the loss of broker discretionary votes in uncontested elections of directors increased the likelihood that issuers will not meet quorum requirements? Would the availability of less-costly means of communication with shareholders improve issuers' ability to meet quorum requirements?
• Do investors have legitimate privacy interests with respect to the disclosure of their share ownership? In what ways would an investor be harmed if his or her identity and the size of his or her holdings are disclosed to issuers? Should an investor be able to indicate that he or she does not wish to be contacted by an issuer? Do broker-dealers or banks have legitimate commercial interests in keeping the identities of their customers confidential? How should these interests be balanced against an issuer's interest in identifying and communicating with its investors? Is this balance different for individual and institutional investors, and if so, would different treatment in regard to OBO status be appropriate? Are there technological solutions that would facilitate communication while protecting the identities of shareholders?
• Issuers have expressed interest in not only communicating with shareholders, but also in identifying them. While these interests can be complementary, is one more important than the other? Should any regulatory changes that may be considered by the Commission emphasize one over the other?
• Are there merits to, or concerns about, establishing a central beneficial owner data aggregator for use by issuers, as suggested by the Shareholder Communications Coalition and as described above?
• Is competition in the proxy distribution service market needed, and if so, what changes to facilitate issuers' communications with investors would also encourage competition in the proxy distribution service market?
• Should we consider rules that would shift the cost of distributing proxy materials to broker-dealers for customers who choose to be objecting beneficial owners?
• Do our rules adequately address how beneficial owners elect objecting or non-objecting beneficial owner status when they open their accounts? Should there be a requirement that beneficial owners' account agreements adopt any specific election as the default choice? If so, would it matter whether the Commission, FINRA, or the stock exchanges imposed that requirement? Should the required default choice be for objecting or non-objecting beneficial owner status? Are there other ways in which default positions can be established for customers of securities intermediaries? Should there be a standardized form for customers to elect either NOBO or OBO status?
• Should we or SROs instead, or in addition, consider requiring securities intermediaries to provide informational materials to their customers prior to allowing the customer to elect OBO or NOBO status? What should be included in such informational materials, and how frequently should investors be provided with such materials? Should we consider requiring securities intermediaries to inform customers of the reasons for and against choosing to disclose or shield their identities?
• Should a broker-dealer periodically request that customers reaffirm their OBO/NOBO status selection? If so, how should the cost of this periodic evaluation be allocated?
• Should we consider revising our rules to require that securities intermediaries provide an omnibus proxy to their underlying beneficial owners and identify them to the issuer? If we were to propose such a rule, should we limit it to granting proxies to NOBOs since their identities are already available to issuers? How would such a system address the way securities transactions are cleared and settled?
• What are the costs and benefits of the annual NOBO system suggested by commentators? Would disclosure of all beneficial owners, limited to information as of the record date of a shareholder meeting, harm those investors (for example, would it reveal trading strategies of those investors)? Would implementing the annual NOBO system adversely affect any privacy interests of OBOs? As a practical matter, would issuers be able to contact OBOs using this information for subsequent shareholder meetings?
• What problems might arise if issuers or their transfer agents have greater access to or control of shareholder lists? How could we provide for fair and efficient access to those lists by other soliciting parties?
As we seek to promote and facilitate shareholder voting in general, we understand that the level of voting by retail investors is a particular area of concern. Retail investor participation rates in the proxy voting process historically have been low.
Commentators have indicated that there is confusion among investors regarding the proxy voting process and the importance of voting.
We believe that improved investor education may help dispel some of these potential misunderstandings and create interest in the voting process. There are several ways in which we can enhance the educational opportunities for investors. We recently created a new section on our investor site,
Another possible venue for investor education is issuers' Web sites and brokers' Web sites. Many investors go to issuer Web sites to obtain information about the issuers in which they invest, and an increasing number of investors review their holdings and effect securities transactions through their brokers' Web sites. More proxy-related educational materials located on an issuer's or broker's Web site may be helpful to investors. In addition, although some explanation of how the proxy process works is often included on the back of the proxy card (or on the VIF), that information can be difficult to read and is often presented in small print. We are interested in whether improving the presentation of information on the proxy card or VIF would have an effect on voting participation.
Finally, we are interested in whether we should also consider the scope, format, and content of the communications between brokers and their customers that occur in connection with opening customers' accounts. The account-opening process may be a good
As noted above, many investors use their brokers' Web sites as “one-stop shopping” for their investment needs. It is our understanding, however, that many of these Web sites do not provide information about upcoming corporate actions or enable retail investors to use the same platform for proxy voting. Rather, many brokers hire a third-party proxy service provider to handle the collection of voting instructions. Therefore, those investors must go to a different Web site, not run by the broker, in order to submit voting instructions to their broker. We are interested in receiving views on whether receiving notices of upcoming corporate votes and having the ability to access proxy materials and a VIF through the investor's account page on the broker's Web site would be helpful to investors. We also wish to explore whether other communications from broker to customer could encourage more active and better informed participation in the proxy voting process.
Some commentators have recommended that we adopt rules to facilitate what has been called “client-directed voting” as a means to increase investor participation in the voting process.
• Vote shares in accordance with the board of directors' recommendations;
• Vote shares against the board of directors' recommendations;
• Vote shares related to particular types of proposals (for example, shareholder proposals related to environmental or social issues) consistent with recommendations issued by specified interest groups, proxy advisory firms, investors, or voting policies;
• Abstain from voting shares; or
• Vote shares proportionally with the brokerage firm's customers' instructed votes, or the instructed votes of its institutional or retail customers only.
The advance voting instructions would generally be given by the investors at the time they sign their brokerage agreements or sign up for the proxy voting service, or periodically thereafter, and would always be revocable. Investors would also be able to change the advance voting instructions at any time.
In connection with each proxy solicitation, investors who had given advance voting instructions would receive a proxy card or VIF pre-marked in accordance with those voting instructions, along with the proxy materials required by the federal securities laws. Investors could override any of the advanced voting instructions applicable to that proxy solicitation by checking or clicking on an appropriate election box before the vote is submitted. Absent instructions to the contrary, the securities intermediary or other party would vote the investor's shares in accordance with the advance voting instructions as pre-marked on the proxy card or VIF.
In connection with the proposal to amend NYSE Rule 452,
While we will continue to consider the advisability of allowing third parties, such as broker-dealers, to solicit instructions regarding the voting of shares by retail investors without the benefit of information that is contained in disclosures that our rules require in connection with shareholder votes, we recognize that facilitating the use of advance voting instructions can be
There is currently no applicable exemption for securities intermediaries to solicit advance voting instructions from their customers. Exchange Act Rule 14a-2(a)(1) provides an exemption from the proxy solicitation rules to securities intermediaries when they forward proxy materials on behalf of issuers and request voting instructions.
To pursue this alternative further, there are a number of issues that would need to be considered. Advance voting instructions could be solicited to varying levels of detail. For instance, such an instruction could be very broad, such as “vote consistent with management's recommendations” or “vote consistent with the recommendations of XYZ Environmental Group.” The grant of such broad authority could raise concerns about the extent to which the investor's vote is an informed one. Greater specificity in a request for instructions, however, could provide an investor with greater certainty regarding what his or her instruction relates to. For example, an instruction to “vote consistent with [management's or other party's] recommendations regarding corporate governance issues” would provide more certainty.
In addition, if we were to permit advance voting instructions, we would need to address other issues including whether such instructions should be re-affirmed on a periodic basis; whether they should apply to the voting of shares of issuers that the investor did not own when the original instructions were submitted; whether they should be re-affirmed each time an investor purchases additional shares of an issuer's stock for which that investor has already submitted voting instructions; and whether brokers can seek from investors advance voting instructions that vary by company.
We are interested in receiving views on whether permitting advance voting instructions would increase retail investor participation in the voting process, and on whether such instructions would be appropriate as a general matter. If such instructions would increase retail investor participation and would be appropriate, we are interested in receiving views on any conditions or requirements that we should consider applying to the solicitation of such instructions.
We are interested in receiving views on whether investor interest in matters presented to shareholders is affected by the extent to which investors are able to communicate with other investors about their opinions regarding matters up for a vote. It is our understanding that there tends to be higher voting participation in situations that involve increased communications and high investor interest, such as well-publicized proxy contests. We have, in the past, adopted several provisions designed to enhance shareholder communications between investors and the issuer, as well as among investors, including:
• Exempting communications with investors from the proxy statement delivery and disclosure requirements where the soliciting person is not seeking proxy authority and does not have, among other things, a substantial interest in the matter (other than as an investor in the issuer);
• Permitting an investor to publicly announce how it intends to vote and provide the reasons for that decision without having to comply with the proxy rules;
• Broadening the types of communications that are permissible prior to the distribution of a definitive proxy statement.
In addition, in 2007, we adopted rules promoting the use of electronic shareholder forums on the Internet for investor communications.
In 2007, we amended the proxy rules to adopt a “notice and access model.”
Issuers may also select the “full set delivery” option, where the issuer
It has been suggested that our adoption of rules permitting the dissemination of proxy materials through a “notice and access” model has contributed to a decline in retail investor participation in voting. We believe that it is difficult to conclude, based on existing data, that notice and access has caused changes in voter participation. To be sure, the number of retail accounts submitting voting instructions when issuers use the notice-only option is lower than the number of retail accounts submitting voting instructions when issuers use the full-set delivery option. The number of retail shares being voted, however, does not appear to differ substantially.
Another possible option to encourage shareholder participation, while still allowing issuers to use the notice-only option, would be to permit the inclusion of a proxy card or VIF with the Notice of Internet Availability of Proxy Materials when an issuer or other soliciting shareholder elects to use the notice-only option under the notice and access model for the delivery of proxy materials. Currently, Exchange Act Rule 14a-16 explicitly prohibits the soliciting party from including a proxy card or VIF with the Notice in the same mailing.
With respect to investor education, we ask the following questions:
• To what extent should we take additional steps to encourage retail investor participation in the proxy process?
• To what extent would greater use of plain English, some form of summary of proxy materials, or layered formats in Web-based disclosure make proxy materials more accessible to retail investors?
• To what extent are retail voter participation levels affected by process-related impediments to participation? If affected by impediments, what are they and should we seek to remove them? What costs and benefits are associated with efforts to increase participation?
• Would additional investor education improve retail investor participation in the proxy process? How could such a program best reach both registered owners and beneficial owners? What would be the benefits and costs of such a program? What should be in the educational materials and who should decide what goes in them?
• Should brokers more clearly highlight and disclose key policies, including a shareholder's voting rights and default positions, such as OBO/NOBO, when a customer enters into a brokerage agreement? Should brokers provide counseling to potential customers to enhance understanding of such provisions in the brokerage agreement? When a customer enters into a brokerage agreement, should brokers be required to obtain the preferences of the client regarding whether to receive proxy materials electronically, and inform issuers of that election automatically when securities of that issuer are purchased?
• What role should the Commission play in promoting or developing the education campaign? How can the SEC's investor education Web sites be made more useful? For example, should the Web site provide interactive instruction?
With respect to enhanced issuers' and brokers' Internet platforms, we ask the following questions:
• Would an issuer's Web site or a broker's Web site be a useful location for investor educational information? Are there other methods to effectively educate investors? What would be the costs and benefits of requiring issuers or securities intermediaries to include such information on their Web sites?
• Should issuers or brokers enhance their Web sites, if they have one, to provide the issuers' shareholders or the brokers' customers, respectively, with the ability to receive notices of upcoming corporate votes, to access proxy materials and to vote shares through their personal account pages? What would be the costs of such a system? Would adding this service for investors make them more likely to vote? To what extent do issuers and brokers currently provide such functionality on their Web sites?
• Should we encourage the creation of inexpensive or free proxy voting platforms that would provide retail investors with access to proxy research, vote recommendations, and vote execution? If so, how?
With respect to advance voting instructions, we ask the following questions:
• Should we consider allowing securities intermediaries to solicit voting instructions in advance of distribution of proxy materials pursuant to an exemption from the proxy solicitation rules? Should there be any conditions on any such exemption, and if so, what should they be?
• To what extent would voting instructions made without the benefit of proxy materials result in less informed voting decisions? Are there countervailing benefits to permitting the solicitation of such instructions? To what extent does the revocability of advance voting instructions mitigate concerns over less informed voting decisions?
• With regard to the use of advance voting instructions, are retail investors at a disadvantage as compared to institutional investors that use the
• If such solicitation of advance voting instructions were permitted, what level of specificity should the solicitation of advanced voting instructions be required (or permitted) to have? Is it appropriate to permit the solicitation of a broad scope of voting authority?
• Should we allow the solicitation by securities intermediaries of advance voting instructions for all types of proxy proposals, or should it be limited to certain types of proposals? For example, should we permit solicitation of advance voting instructions with respect to shareholder proposals, proxy contests, or proposals subject to “vote no” campaigns?
• If solicitation of advance voting instructions were permitted, should the investor be permitted to instruct the securities intermediary to vote in accordance with the recommendations of management, a proxy advisory firm, or other specified persons? How neutral or balanced should the solicitation of advance voting instructions be?
• If we were to allow the solicitation of advance voting instructions, should we require an investor to reaffirm its voting instructions periodically? If so, how often? Should we require an investor to reaffirm its voting instructions every time it purchases additional shares of a stock for which that investor has already submitted a voting instruction, or when it purchases shares of a new issuer?
• If we were to allow advance voting instructions, what would be an appropriate range of options available to an investor? Should advance voting instructions only be permitted when the investor has meaningful options from which to choose?
• How difficult would it be to obtain advance voting instructions from existing brokerage customers? What would be the costs of obtaining advance voting instructions for existing accounts? Who should bear the costs of soliciting such instructions?
• If we were to allow the solicitation of advance voting instructions, would it undermine or promote the purpose of the recent amendment to NYSE Rule 452 to prohibit brokers from voting uninstructed shares in uncontested elections of directors?
With respect to investor-to-investor communications, we ask the following questions:
• To what extent are investor interest in matters presented to shareholders and investor voting participation affected by the lack of investor-to-investor communications regarding those matters?
• Have electronic shareholder forums been used extensively? Are there any revisions to Rule 14a-2(b)(6), which currently provides an exemption for electronic shareholder forums, that would make it easier to establish such forums? For example, is there a way for an entity establishing an electronic shareholder forum to confirm the shareholder status of participants on the forum? If a securities intermediary provides information, such as a control number, to enable such confirmation, should precautions be taken to ensure that personal information about those investors is not disclosed?
• Should we consider revising the electronic shareholder forum rules to shorten the 60-day period to promote more shareholder-to-shareholder communication closer to the meeting date? If so, what would be an appropriate time period?
• Are there any other new rules or revisions to existing rules that would facilitate communications among investors? If so, what would those revisions be?
• Would any additional guidance regarding the scope of our rules and definitions, such as the definition of the term “solicitation,” improve the extent and quality of investor participation in the proxy voting process?
With respect to possible revisions to the notice and access model, we ask the following questions:
• Should we consider requiring that companies using a “notice and access” model for distributing proxy materials use that model on a stratified basis to encourage retail voting participation? For example, should we require that issuers send full sets of proxy materials to shareholders who have voted on paper in the past two years?
• Should we consider amending our rules to permit inclusion of a proxy card or VIF with a Notice of Internet Availability of Proxy Materials?
• Are there other changes that we can make to the notice and access model to improve voting participation? For example, should we require affirmative consent from a shareholder before an issuer is allowed to send that customer only a Notice of Internet Availability of Proxy Materials? Should we eliminate the notice and access model altogether?
Issuers soliciting proxies are required to distribute a proxy statement
In 2004, as part of our longstanding efforts to increase transparency in general and the usefulness of information in particular, we began an initiative to assess the benefits of interactive data
Our efforts regarding interactive data thus far have resulted in our adoption of rules that, in general, currently or ultimately will require:
• Public issuers, including foreign private issuers, to provide their financial statements to the Commission and on their corporate Web sites, if any,
• Mutual funds
• Rating agencies to provide certain ratings information on their Web sites in XBRL format;
• Money market funds to provide portfolio holdings information to the Commission in interactive data format using eXtensible Markup Language (“XML”);
• Transfer agents to provide registration, activity and withdrawal information to the Commission in XML format;
• Issuers to provide notice of Regulation D
• Officers, directors, and principal owners to provide beneficial ownership information under Section 16(a) of the Exchange Act
Currently, proxy statement and voting information is neither required nor permitted to be provided to the Commission in interactive data format. As a result, shareholders cannot retrieve, search, and use this information through automated means in the form in which it is provided to the Commission.
We are interested in receiving views on whether it would be beneficial to investors to permit or require issuers, including funds, to provide proxy statement and voting information in interactive data format in addition to the traditional format. We are also interested in understanding the costs of providing additional tagged information. A significant amount of the textual data in the proxy statement is well-structured and may be suitable for data tagging. If issuers provided reportable items in interactive data format, shareholders may be able to more easily obtain specific information about issuers, compare information across different issuers, and observe how issuer-specific information changes over time as the same issuer continues to file in an interactive data format. This could both facilitate more informed voting and investment decisions and assist in automating regulatory filings and business information processing.
Under our current rules, issuers are permitted or required to provide specified information in interactive data format only as described above. We have, however, previously considered, and sought comment on, permitting or requiring interactive data for other types of information in XBRL or another format.
In connection with our efforts to improve communication in the proxy context, we are interested in receiving views on whether we should reconsider whether to permit or require proxy statement and voting information to be provided in interactive data format.
• Should we permit issuers, including funds, to provide proxy statement and voting information to the Commission and on their corporate Web sites, if any, in an interactive data format? If so, are there benefits to one tagging language (
• Are there any other types of information for which we should permit or require tagging in order to improve the efficiency and quality of proxy voting? For example, should we permit or require tagging of information contained in proxy statements filed by non-management parties?
• If we permit or require interactive data for the information contained in a proxy statement, should we permit or require it for only a subset of that information, such as executive compensation,
• Would it be useful to investors for issuers to provide their proxy statement and voting information, or some subset of that information, in interactive data format? If so, would it be useful for issuers to provide the information both to the Commission and on their corporate Web sites, if any? Would data-tagging enable investors to access proxy information more easily or to compare information regarding different issuers and/or changes in information over time with respect to a specific issuer or a set of issuers? Would this ability result in better informed voting decisions? For insance, should officer and director identities be tagged and linked to their unique Commission Central Index Key (CIK) identifier, which would enable investors to more easily determine whether they have relationships with other Commission filers? Would investors benefit if governance attributes, such as board leadership structure
• Would requiring issuers to provide proxy statements and voting information in interactive data format assist issuers in automating their business information processing?
• Approximately how much would it cost issuers to provide each of the following in interactive data format:
• All information contained in a proxy statement;
• Executive compensation information only; and
• Voting information disclosed pursuant to Item 5.07 of Form 8-K or Form N-PX?
• With respect to cost, would it be preferable to defer any requirement to tag proxy-related materials until the issuer has been fully phased-in to the financial statement interactive data requirements, or would it be relatively easy to accomplish the tagging of proxy-related materials before, or at the same time as, becoming subject to the financial statement requirements?
• Is it feasible for funds to tag Form N-PX in a manner that provides for uniform identification of each matter voted (
• Whether or not we permit or require interactive data tagging, should Form N-PX require standardized reporting formats so that comparisons between funds are easier?
• Should persons other than the issuer be required to file proxy materials in interactive data format?
• How will retail investors have access to interactive data/XBRL software that will enable them to take advantage of interactive data formats?
As discussed below, investor and issuer confidence in the legitimacy of shareholder voting may be based on the belief that, except as expressly agreed otherwise, shareholders entitled to vote in the election of directors and other matters have a residual economic (or equity) interest in the company that is commensurate with their voting rights. To the extent that votes are cast by persons lacking such an economic interest in the company, confidence in the proxy system could be undermined. This section examines the possibility of misalignment of voting power in general and three areas in which concerns have been expressed about whether our regulations play a role in the misalignment of voting power from economic interest: The increasingly important role of proxy advisory firms; the impediments in our rules to allowing issuers to set voting record dates that more closely match the date on which voting actually occurs; and hedging and other strategies that allow the voting rights of equity securities to be held or controlled by persons without an equivalent economic interest in the company.
Over the last twenty-five years, institutional investors, including investment advisers, pension plans, employee benefit plans, bank trust departments and funds, have substantially increased their use of proxy advisory firms, reflecting the tremendous growth in institutional investment as well as the fact that, in many cases, institutional investors have fiduciary obligations to vote the shares they hold on behalf of their beneficiaries.
Every year, at shareholders' meetings, these investors face decisions on how to vote their shares on a significant number of matters, ranging from the election of directors and the approval of stock option plans to shareholder proposals submitted under Exchange Act Rule 14a-8,
In order to assist them in exercising their voting rights on matters presented to shareholders, institutional investors may retain proxy advisory firms to perform a variety of functions, including the following:
• Analyzing and making voting recommendations on the matters presented for shareholder vote and included in the issuers' proxy statements;
• Executing votes on the institutional investors' proxies or VIFs in accordance with the investors' instructions, which may include voting the shares in accordance with a customized proxy voting policy resulting from consultation between the institutional investor and the proxy advisory firm, the proxy advisory firm's proxy voting policies, or the institution's own voting policy;
• Assisting with the administrative tasks associated with voting and keeping track of the large number of voting decisions;
• Providing research and identifying potential risk factors related to corporate governance; and
• Helping mitigate conflict of interest concerns raised when the institutional investor is casting votes in a matter in which its interest may differ from the interest of its clients.
Firms that are in the business of supplying these services to clients for compensation—in particular, analysis of and recommendations for voting on matters presented for a shareholder vote—are widely known as proxy advisory firms.
Issuers may also be consumers of the services provided by some proxy advisory firms. Some proxy advisory firms provide consulting services to issuers on corporate governance or executive compensation matters, such as assistance in developing proposals to be submitted for shareholder approval. Some proxy advisory firms also qualitatively rate or score issuers' corporate governance structures, policies, and practices,
Depending on their activities, proxy advisory firms may be subject to the federal securities laws in at least two notable respects. First, because of the breadth of the definition of “solicitation,”
• Must render financial advice in the ordinary course of its business;
• Must disclose to the person any significant relationship it has with the issuer or any of its affiliates, or with a shareholder proponent of the matter on which advice is given, in addition to any material interest of the advisor in the matter to which the advice relates;
• May not receive any special commission or remuneration for furnishing the proxy voting advice from anyone other than the recipients of the advice; and
• May not furnish proxy voting advice on behalf of any person soliciting proxies.
Even if exempt from the informational and filing requirements of the federal
Second, when proxy advisory firms provide certain services, they meet the definition of investment adviser under the Advisers Act and thus are subject to regulation under that Act. A person is an “investment adviser” if the person, for compensation, engages in the business of providing advice to others as to the value of securities, whether to invest in, purchase, or sell securities, or issues reports or analyses concerning securities.
The Supreme Court has construed Section 206 of the Advisers Act as establishing a federal fiduciary standard governing the conduct of investment advisers.
In addition, Section 206 of the Advisers Act,
Proxy advisory firms also may have to register with the Commission as investment advisers. Whether a particular investment adviser is required to register with the Commission depends on several factors. Investment advisers are generally prohibited from registering with the Commission if they have less than $25 million in assets under management.
Proxy advisory firms are unlikely to have sufficient assets under management to register with the Commission because they typically do not manage client assets.
Proxy advisory firms that are registered as investment advisers with the Commission are subject to a number of additional regulatory requirements that provide important protections to the firm's clients. For example, registered investment advisers have to make certain disclosures on their Form ADV.
The use of proxy advisory firms by institutional investors raises a number of potential issues. For example, to the extent that conflicts of interest on the part of proxy advisory firms are insufficiently disclosed and managed, shareholders could be misled and informed shareholder voting could be impaired. To the extent that proxy advisory firms develop, disseminate, and implement their voting recommendations without adequate accountability for informational accuracy in the development and application of voting standards, informed shareholder voting may be likewise impaired. Furthermore, some have argued that proxy advisory firms are controlling or significantly influencing shareholder voting without appropriate oversight, and without having an actual economic stake in the issuer.
In order to address these issues, which we describe in additional detail below, we would like to receive views about the role that proxy advisory firms play in the proxy voting process, which could, for instance, assist in determining whether additional regulatory requirements might be appropriate, such as the extent to which oversight of proxy advisory firms registered as investment advisers might be improved. Below we outline the two principal areas of concern about the proxy advisory industry that have come to our attention.
Perhaps the most frequently raised concern about the proxy advisory industry relates to conflicts of interest.
In particular, this conflict of interest arises if a proxy advisory firm provides voting recommendations on matters put to a shareholder vote while also offering consulting services to the issuer or a proponent of a shareholder proposal on the very same matter.
A conflict also arises when a proxy advisory firm provides corporate governance ratings on issuers to institutional clients, while also offering consulting services to corporate clients so that those issuers can improve their corporate governance ranking.
It is our understanding that at least one proxy advisory firm provides a generic disclosure of such conflicts of interest by stating that the proxy advisory firm “may” have a consulting relationship with the issuer, without affirmatively stating whether the proxy advisory firm has or had a relationship with a specific issuer or the nature of any such relationship. Some have argued that this type of general disclosure is insufficient, even if the proxy advisory firm has confidentiality walls between its corporate consulting and proxy research departments.
Some commentators have expressed the concern that voting recommendations by proxy advisory firms may be made based on materially inaccurate or incomplete data, or that the analysis provided to an institutional client may be materially inaccurate or incomplete.
There also is a concern that proxy advisory firms may base their recommendation on one-size-fits-all governance approach.
Rule 14a-2(b)(3)'s exemption of proxy advisory firms does not mandate that a firm relying on the exemption have specific procedures in place to ensure that its research or analysis is materially accurate or complete prior to recommending a vote.
Revising or providing interpretive guidance on the proxy rule exemption in Exchange Act Rule 14a-2(b)(3)
Alternatively, or in addition, we seek comment on whether proxy advisory firms operate the kind of national business or have an impact on the securities markets that Advisers Act Section 203A(c)
Finally, in light of the similarity between the proxy advisory relationship and the “subscriber-paid” model for credit ratings, we could consider whether additional regulations similar to those addressing conflicts of interest on the part of Nationally Recognized Statistical Rating Organizations (“NRSROs”)
One commentator has suggested that the Commission's rules that govern NRSROs may be useful templates for developing a regulatory program addressing conflicts of interest and other issues with respect to the accuracy and transparency of voting recommendations provided by proxy advisory firms. Such rules include provisions that: (i) Require rating actions to be made publicly available on the NRSRO's Internet Web site [17 CFR 240.17g-2(d)(3)]; (ii) prohibit certain conflicts of interest [17 CFR 240.17g-5(c); Form NRSRO Exhibits 6-7]; (iii) require the disclosure and management of certain other conflicts of interest that arise in the normal course of engaging in the business of issuing credit ratings [17 CFR 240.17g-5(b)]; and (iv) require disclosure of, among other things, performance measurement statistics, sources of information, models and metrics used, qualifications and compensation of analysts, and procedures and methodologies used to determine credit ratings, including procedures for (A) interacting with management of rated issuers, (B) informing issuers of rating decisions, and (C) appealing final or pending rating decisions. [Form NRSRO, Exhibits 1, 2, 8 and 13]. We recognize that the role of NRSROs and proxy advisory firms differ and that following a similar regulatory approach might not be appropriate. We also recognize that the costs and benefits of the NRSRO regulation differ from the costs and benefits of potential additional regulation of proxy advisory firms.
We have identified a number of potential approaches that might address concerns about accuracy or transparency in the formulation of voting recommendations by proxy advisory firms. For example, proxy advisory firms could provide increased disclosure regarding the extent of research involved with a particular recommendation and the extent and/or effectiveness of its controls and procedures in ensuring the accuracy of issuer data. Proxy advisory firms could also disclose policies and procedures for interacting with issuers, informing issuers of recommendations, and handling appeals of recommendations.
As discussed above, we are considering the extent to which the voting recommendations of proxy advisory firms serve the interests of investors in informed proxy voting, and whether, and if so, how, we should take steps to improve the utility of such recommendations to investors. In particular, we seek comment on whether we should clarify existing regulations or propose additional regulations to address concerns about the existence and disclosure of conflicts of interest on the part of proxy advisory firms, and about the accuracy and transparency of the formulation of their voting recommendations. Accordingly, we seek commentators' views generally on proxy advisory firms and invite comment on the following questions:
• Do proxy advisory firms perform services for their clients in addition to or different from those noted above?
• Is additional regulation of proxy advisory firms necessary or appropriate for the protection of investors? Why or why not? If so, what are the implications of regulation through the Advisers Act or the proxy solicitation rules under the Exchange Act? Are any other regulatory approaches equally or better suited to provide appropriate additional regulation? Are there regulatory approaches used in connection with NRSROs that may be appropriate to consider applying to proxy advisory firms?
• Are there conflicts of interest (other than those described above) when a proxy advisory firm provides services to both investors, including shareholder proponents, and issuers? If so, are those conflicts appropriately addressed by current laws, regulations, and industry practices?
• Are there conflicts of interest where a proxy advisory firm is itself a publicly held company? If so, what are they and how should they be addressed?
• What policies and procedures, if any, do proxy advisory firms use to ensure that their voting recommendations are independent and not influenced by the fees they receive for services to corporate clients or shareholder proponent clients?
• Is the disclosure that proxy advisory firms currently provide to investor clients regarding conflicts of interest adequate? Would specific disclosure of potential conflicts and conflict of interest policies be sufficient, or is some other form of regulation necessary (
• Do issuers modify or change their proposals to increase the likelihood of favorable recommendations by a proxy advisory firm?
• Do issuers adopt particular governance standards solely to meet the standards of a proxy advisory firm? If so, why do issuers behave in this manner?
• Should proxy advisory firms be required to disclose publicly their decision models for approval of executive compensation plans? Would this alleviate concerns regarding potential conflicts of interest when issuers pay consulting fees for access to such models?
• What is the competitive structure of the market for proxy advisory firms, and what are the reasons for it? Does competition vary across the types of services provided by the proxy advisory firms or the subset of issuers that they cover? Does the industry's competitive structure affect the quality of the recommendations? If there is, as we understand it, one proxy advisory firm that has a significantly larger market share than other firms,
• How do institutional investors use the voting recommendations provided by proxy advisory firms? What empirical data exists regarding how, and to what extent, institutional investors vote consistently, or inconsistently, with such recommendations?
• What criteria and processes do proxy advisory firms use to formulate their recommendations and corporate governance ratings? Does the lack of a direct pecuniary interest in the effects of their recommendations on shareholder value affect how they formulate recommendations and corporate governance ratings? Would greater disclosure about how recommendations and corporate governance ratings are generated and how voting recommendations are made affect the quality of the ratings and the recommendations?
• Are existing procedures followed by proxy advisory firms sufficient to ensure that proxy research reports provided to investor clients are materially accurate and complete? If not, how should proxy advisory firms be encouraged to provide investors with the information they need to make informed voting decisions?
• If additional oversight is needed, should it be in the form of regulatory oversight or issuer involvement? Would requiring delayed public disclosure of voting recommendations be an appropriate means to promote accurate voting recommendations?
• Do proxy advisory firms control or significantly influence shareholder voting without appropriate oversight? If so, is there empirical evidence that demonstrates this control or significant influence? If such proxy advisory firms do control or significantly influence shareholder voting, is that inappropriate, and if so, should the Commission take action to address it? If so, what specific action should the Commission take?
• Are there any proxy advisory firms that cannot rely on an exemption to the prohibition on Advisers Act registration? If so, why do the exemptions not apply to those proxy advisory firms?
• Do proxy advisory firms operate the kind of national business that the Advisers Act Section 203A(c) was designed to address? Should we create an additional exemption from the prohibition on federal registration for proxy advisory firms to register as investment advisers? If so, what standard should we use?
• Do the current regulatory requirements for registered investment advisers adequately address advisers whose business is primarily providing proxy voting services? If we consider new rulemaking in this area, what should the rules address? Should we amend Form ADV to require specific disclosures by registered investment advisers that are proxy advisory firms?
• Do proxy advisory firms maintain an audit trail for votes cast on behalf of clients? Do proxy advisory firms monitor whether votes cast are appropriately counted, and if so, how?
Under state corporation law, issuers set a record date in advance of a shareholder meeting, and holders of record on the record date are entitled to notice of the meeting and to vote at the meeting. State corporation law also governs how far in advance of the meeting a record date can be—typically, no more than 60 days before the date of the meeting.
Historically, the same record date has been used for determining both which shareholders are entitled to notice of an upcoming meeting and which shareholders are entitled to vote. However, some states are enacting changes to this procedure. For example, effective August 1, 2009, the Delaware General Corporation Law permits, but does not require, Delaware corporations to use separate record dates for making these two determinations.
Although Delaware's amended statute permits a voting record date
We have not adopted a 20 calendar day requirement with respect to proxy materials,
• Instructions to Schedule 14A, Form S-4, and Form F-4 prescribe certain situations in which, if the materials being sent to shareholders incorporate information by reference, the issuer must send its proxy statement or prospectus to investors at least 20 business days before the meeting;
• Rule 14a-16(a)(1) requires issuers not relying on the full set delivery option to provide a Notice of Internet Availability of Proxy Materials at least 40 calendar days before the meeting date;
• Certain of our rules and forms require that if a limited partnership roll-up transaction is being proposed, the disclosure document must be distributed no later than the lesser of 60 calendar days prior to the meeting date or the maximum number of days permitted for giving notice under applicable state law.
Because these provisions require a period of time between the mailing of materials and the meeting date and because, under a dual record date system, the investors to whom the materials must be mailed (that is, those investors entitled to vote at the meeting) would not be identified until the voting record date,
Issuers also need to consider logistical matters in deciding the timing of their voting record date and their mailing. They need to find out how many copies of their materials to print, print the materials, and distribute the materials to transfer agents and to proxy service providers so that they can be delivered to registered and beneficial owners. Exchange Act Rules 14a-13, 14b-1, 14b-2, and 14c-7 govern this process, but we understand that in practice those rules reflect only a subset of the time-consuming logistical hurdles issuers need to go through. In this release, we are inviting submission of additional information on this process and suggestions for streamlining it.
In light of the changes to state law, we seek to explore whether to propose action to accommodate issuers that wish to use separate record dates where permitted by state law, and if so, what action we should take. In analyzing this situation, we are faced with competing considerations. On one hand, the closer to a meeting date a voting record date is, the more likely it is that investors who are entitled to vote will still have an economic interest in the issuer at the time of the shareholder meeting. Thus, setting the voting record date close to the meeting date avoids disenfranchising the shareholders who purchase their shares after the record date for notice of the meeting. Moreover, facilitating the use of a notice record date that significantly precedes a voting record date may assist shareholders in recalling loaned securities in order to vote them. On the other hand, investors who are entitled to vote need adequate time to receive the proxy materials and consider the matters presented to them for approval. Inadequate time can lead to uninformed voting decisions or, in some cases, a decision by the investor not to vote at all, a problem that was highlighted in 2007 as we considered adopting the notice and access rules.
If we choose to facilitate issuers' use of separate record dates, we could choose between two general models, one focusing principally on the notice record date and the other focusing principally on the voting record date. The first model would be to require issuers to provide proxy materials or an information statement, as applicable, to those who are investors as of the notice record date. This model parallels the Delaware provision in that it focuses the information-delivery obligation on persons who are investors as of the notice record date. One open question under this first model is whether issuers should subsequently be obligated to send the disclosure document to those who were not investors as of the notice record date but who become investors by the voting record date.
The second model would be to require issuers to provide the disclosure document to those who are investors as of the voting record date. An open issue under this model is whether and how issuers should be obligated to make the disclosure document public at some point before the voting record date.
Under either model, it is possible that some investors will obtain a proxy card or VIF, fill it out and submit it, and then buy additional shares or sell some shares, all prior to the voting record date. Thus, the number of shares held at the time of submission of the proxy or VIF may differ from the number of shares that are ultimately voted on behalf of the investor. In such a situation, we would need to consider how the proxy or VIF already submitted by the investor would be affected, as well as the legal and operational implications that this situation may impose on broker-dealers and their customers and the costs associated with developing a process to address it, in light of the complex beneficial ownership structure described earlier in this release.
Investors may benefit from receiving information about the effect that trades subsequent to the submission of their proxy or VIF will have on their voting rights. Therefore, additional disclosure may be necessary in proxy and information statements. One possible disclosure would be to establish that if an investor submits a proxy or VIF prior to the voting record date, all of the shares held by the investor as of the voting record date would be voted in accordance with the proxy or VIF, in the absence of specific contrary instructions from the investor.
• Do issuers wish to use dual record dates? If so, why?
• The Delaware amendment became effective on August 1, 2009. Should we first see how popular the dual-record-date provision is before providing a regulatory response? Or, are our rules an impediment to using dual record dates, so that it is difficult to assess whether this new approach would be viewed favorably by issuers or investors unless we change our rules?
• In view of the competing policy considerations described above, if we respond, should we respond in a way that generally facilitates issuers' ability to use the dual-record-date approach or in a way that discourages it? Which direction would be better for investors? Is there a more neutral approach that would better serve the interests of investors?
• Even if it is too early for us to take action that either facilitates or discourages issuers' use of dual record dates, does the mere existence of a two-record-date regime create confusion or uncertainty in the interpretation of any of our existing rules? If so, which rules need to be clarified or revised? For example, should we consider proposing to clarify or to revise:
• Rules 14a-1(h) and 14c-1(h), which define “record date” as, essentially, the voting record date;
• Item 6(b) of Schedule 14A, which requires issuers to “[s]tate the record date, if any, with respect to this solicitation”; or
• Rules 14a-13(a)(3) and 14c-7(a)(3), which require issuers to send an inquiry at least 20 business days prior to the record date?
• Would any SRO rules or recommendations need to be revised or clarified in order to facilitate the use of dual record dates?
• Under the first model described above, after an issuer distributes its disclosure document to investors as of the notice record date, the issuer might need to send the disclosure document, or at least a notice of the availability of the disclosure document, to those who become investors after the notice record date but before the voting record date.
• Would this obligation be appropriate?
• If not, how would new investors obtain the means to vote, such as a proxy card, a VIF, or a control number to vote electronically or telephonically? Would they be limited to attending the meeting in person? Would new beneficial owners be able to vote or attend at all?
• Given that the investors who are entitled to vote are the investors as of the voting record date, would the first model (in which some investors who ultimately would not be entitled to vote would receive proxy materials) serve any useful interest if such an obligation were not imposed?
• If we do not impose such an obligation on issuers, should they be able to choose which new investors to send the disclosure document to, or should an “all or none” requirement apply? If they should have a choice, on what basis should they be able to choose?
• Finally, what impact would the first model have on the costs of distributing proxy materials?
• Under the second model described above, because the voting record date might be close to, or on, the meeting date, would it be necessary to require issuers to make public their disclosure document at some point before the voting record date? What would be the most appropriate way for them to do so, and how far in advance of the voting record date or the meeting date should they be required to do so? Should we consider different requirements for different sizes of issuers (for example, permit more reliance on media outlets and less reliance on physical mailings for larger issuers)?
• Which of the two general approaches outlined above is more appropriate? What other general approaches should we consider?
• Would broker-dealers be able, or have sufficient time, to track accurately which beneficial owners would have the right to vote on the voting record date if it is close to the shareholder meeting? If so, what would be the cost to broker-dealers to establish such tracking systems?
• As discussed above, some of our rules specify a minimum number of days before a meeting by which an issuer must distribute its disclosure document. Should we consider shortening or eliminating any of these time periods? If we shorten any of them, what is an appropriate amount of time to replace it with?
• Should we propose to specify a minimum number of days that must elapse between the mailing of a proxy statement and a meeting, as Rule 14c-2(b) does with information statements? If we were to do so, what would be an appropriate number of days, and should the number be flexible to account for such possibilities as overnight or electronic delivery, or electronic or telephonic voting?
• Should we propose that federal proxy rules prescribe a form of proxy that permits the shareholder to specify the extent to which an executed proxy should be applied to shares that are bought after the proxy is submitted and before the voting record date?
• Would voting all of the shares in accordance with the instructions on the proxy or VIF present issues under Rule 14a-10(b), which prohibits the solicitation of “any proxy which provides that it shall be deemed to be dated as of any date subsequent to the date on which it is signed by the security holder”? If so, should that rule be amended, and how?
As noted in the Introduction, this release primarily focuses on whether the U.S. proxy system operates with the accuracy, reliability, transparency, accountability, and integrity that shareholders and issuers should rightfully expect. These expectations are shaped in part by the Commission's proxy solicitation, disclosure and other rules, the rules of the national securities exchanges, as well as by the substantive rights granted under state corporate law and the charter and bylaw provisions of individual corporations.
At their core, these expectations are based on the foundational understanding that, absent contractual or legal provisions to the contrary, a “shareholder” possesses both voting rights and an economic interest in the company.
The ability to separate a share's voting rights from the economic stake through, for instance, what has been dubbed “empty voting” and “decoupling” challenges this foundational understanding.
Such decoupling raises potential practical and theoretical considerations for voting of shares. For example, an empty voter with a negative economic interest in the company may prefer that the company's share price fall rather than increase. Such a person's voting motivation contradicts the widely-held assumption that equity securities are voted based on an interest in increasing shareholder value and in a way to protect shareholders' interests or enhance the value of the investment in the securities. That assumption—a core premise of state statutes requiring shareholder votes to elect directors and approve certain corporate decisions—may be undermined by the possibility that persons with voting power may have little or no economic interest or, even worse, have a negative economic interest in the shares they vote. It is a source of some concern that elections of directors and other important corporate actions, such as business combinations, might be decided by persons who could have the incentive to elect unqualified directors or block actions that are in the interests of the shareholders as a whole. Significant decoupling of voting rights from economic interest could potentially undermine investor confidence in the public capital markets.
On the other hand, empty voting may not always be contrary to the interests of shareholders. One article argues, for instance, that informed investors
As discussed below, regardless of whether empty voting is deemed to be “good” or “bad,” there is a strong argument for ensuring that there is transparency about the use of empty voting. If a voter acquires shares with a view to influencing or controlling the outcome of a vote but takes steps to reduce the risk of economic loss or even achieve a negative economic interest, disclosure of the empty voter's status and intentions could be important information to other shareholders.
The Commission needs to further evaluate empty voting and related techniques in order to properly review the reliability, accuracy, transparency, accountability, and integrity of the current proxy system and the challenges that may be posed by empty voting and related techniques. Therefore, we are seeking information on the myriad ways in which decoupling can occur, and its nature, extent, and effects on shareholder voting and the proxy process.
A variety of techniques can be used to accomplish empty voting. One technique is to hold shares but to hedge the economic interest in those shares. A shareholder could hedge that economic interest in a wide variety of ways, including by buying either exchange-traded or OTC put options. In a recent Commission enforcement action, a registered investment adviser agreed to settle charges that it had violated Section 13(d) of the Exchange Act in furtherance of a strategy of “essentially buying votes.”
While the practice of empty voting was not asserted as a substantive violation in the enforcement action, the matter illustrates how hedging techniques can be used to obtain voting power without having economic exposure on the securities being voted. The use of hedging by insiders also can result in empty voting. Executives entering into “collars” transactions, for instance, retain full voting rights despite having hedged a portion of their economic interest.
Empty voting can also be accomplished by the use of credit derivatives (rather than through the use of put options and other equity derivatives), a process dubbed “hybrid decoupling.”
Finally, hedging-based strategies need not even involve holding either the debt or equity of the company in which the shareholder is voting, or derivatives linked to such debt or equity. A shareholder may, for instance, be able to hedge its exposure to a company's shares through purchasing assets correlated in some fashion to the company's share price. In the case of an acquisition, for example, a shareholder in the potential acquirer which also holds a larger equity interest in the target company, may arguably be characterized as being an empty voter with a negative economic interest in the acquirer. That is, the more the acquirer overpays for the target, the more net profit the investor would achieve. Other correlated assets that may be used in empty voting strategies may include, for example, shares of a competitor or a supplier.
There are a variety of situations in which empty voting may arise without any hedging at all. For example, active trading between a voting record date and the actual voting date may result in many voters having voting rights different from their economic stakes. An investor who sells shares after the voting record date retains the right to vote the shares without having any economic interest in them. Another example of empty voting without hedging is the voting of employees' unallocated shares in an employee stock ownership plan (“ESOP”). In an ESOP, while employees only have a contingent economic interest in the unallocated shares, the shares have full voting rights and are voted by a trustee, who either exercises discretion in voting or votes in proportion to vested ESOP shares. Effectively, either the trustee or the employees may become empty voters.
One important non-hedging based technique that appears to have been used outside the United States is borrowing shares in the stock lending market. Under standard stock lending arrangements, the borrower of the shares has the voting rights associated with the shares borrowed, but relatively little or no economic interest in the shares.
As one possible response to empty voting and related phenomena, the Commission could consider requiring disclosure that creates transparency.
Beyond gathering information and enhancing transparency, the following are some of the possible responses to empty voting and other types of decoupling that could be considered by the Commission, Congress, state legislatures, and individual issuers.
• Require voters to certify on the form of proxy or VIF that they held the full economic interest in the shares being voted at the time the proxy was executed, or, if not, disclose the extent to which their economic interest in the shares was shorted or hedged.
• Require disclosure of the shareholder meeting agenda sufficiently ahead of the record date to enable investors who have loaned their securities to recall those loans to retain voting control of those securities.
• Permit only persons who possess pure long positions (
• Prohibit empty voting, especially in situations where there is a negative economic interest.
• What is the potential for, and actual prevalence of, all forms of equity, debt, and hybrid decoupling (including empty voting)? Are these techniques employed differently by “outside” investors, company insiders, and the company itself? Does decoupling raise public policy concerns, for example in relation to the disclosure requirements of Section 13(d)? Are existing disclosure requirements under Section 13(d) and other provisions of federal securities laws sufficient to address the entire range of concerns raised by equity, debt, and hybrid decoupling?
• Can the potentially beneficial and potentially detrimental aspects of debt, equity, or hybrid decoupling be meaningfully distinguished? Are there adverse consequences if there are empty voters, or even empty voters with negative economic interests, especially if their votes are outcome determinative? Are there examples of situations in which empty voting was outcome determinative?
• What are the mechanisms that result in debt, equity, and hybrid decoupling giving rise to public policy concerns? How important are these different mechanisms? To what extent can credit derivatives, correlated assets (such as, for example, shares of other participants in a takeover battle), or other financial instruments be used, and to what extent are they being used, to accomplish empty voting? To what extent does debt decoupling raise issues similar to those raised by equity decoupling or hybrid decoupling and how might regulatory or other responses to debt decoupling differ?
• At what economic threshold or percentage of voting power threshold is decoupling—by any one individual, by group, or by shareholders in the aggregate—material to the company and its security holders?
• Are certain companies (for instance, due to their ownership or capital structure) particularly vulnerable to potential adverse effects of debt, equity, or hybrid decoupling?
• Do concerns about decoupling economic interests and voting rights extend to the decoupling of voting and investment management functions within institutional investors?
• Under what circumstances should disclosure of a shareholder's net economic interest be required, along with any associated decoupling? If such net economic interest is required to be disclosed, how should “net economic interest” be defined, given the myriad ways in which such decoupling can occur? Should our rules require disclosure regarding, and/or certification of, beneficial and economic ownership as part of the form of proxy or VIF? Or should this matter be left to state law or bylaws adopted by individual companies?
• If companies and company executives themselves engage in decoupling, do existing disclosure requirements result in sufficient transparency for investors to observe this behavior? If not, what level of disclosure would provide sufficient transparency? What changes to Schedules 13D or 13G, periodic disclosure requirements, Securities Act disclosure rules, the proxy rules, or other aspects of securities law are advisable?
• Are there circumstances (such as empty voting while holding a negative economic interest) where debt, equity, and hybrid decoupling appear to be fundamentally detrimental to the shareholders, debtholders, or the issuer itself? Are existing disclosure requirements, or changes to existing disclosure requirements, sufficient to address any such concerns? Should the Commission consider additional remedial actions? What role should federal law, state law and individual corporate actions play in addressing any such concerns?
• Should we propose rule changes to provide more disclosure and transparency as to equity, debt, or
• If we were to propose any enhanced or new disclosure requirements, what should the filing deadlines be under various circumstances in order to inform the marketplace on a timely basis, while providing adequate time for those responsible for complying with the requirement to collect the information and prepare the filing?
• What should be the triggers for such disclosure requirements? For instance, in establishing such a trigger, is the more than 5% equity ownership threshold of Exchange Act Section 13(d) analogous in any way? Are the current “beneficial owner” concepts contemplated by Regulation 13D-G, some variation of such concepts, or some altogether different concept of ownership appropriate for determining whether a disclosure requirement is triggered? Or should decoupling-related disclosures not be based on conceptions of ownership, but instead be based on the nature of the investor and presence of investment discretion, as with Form 13F? Are there alternatives to “ownership,” the nature of the investor, and presence of investment discretion that should be considered?
• What level of detail should be required for decoupling-related disclosures, recognizing the complexity of, for example, many OTC derivatives?
• If, pursuant to state law or a company's articles or bylaws, there are substantive limitations on empty voting or other forms of decoupling, should the Commission accommodate the implementation of such limitations by, for instance, requiring disclosure or ownership certifications on the form of proxy or VIF?
• To what extent is Regulation T, by its terms, effective in limiting the borrowing of shares for voting purposes? Should the Commission or another regulator propose a new rule that would prohibit or restrict borrowing securities for purposes of obtaining the right to vote those securities?
The U.S. proxy system is the fundamental infrastructure of shareholder suffrage since the corporate proxy is the principal means by which shareholders exercise their voting rights. The development of issuer, securities intermediary, and shareholder practices over the years, spurred in part by technological advances, has made the system complex and, as a result, less transparent to shareholders and to issuers. It is our intention that this system operate with the reliability, accuracy, transparency, and integrity that shareholders and issuers should rightfully expect.
We are interested in the public's opinions regarding the matters discussed in this concept release. We encourage all interested parties to submit comment on these topics. In addition, we solicit comment on any other aspect of the mechanics of proxy distribution and collection that commentators believe may be improved upon.
By the Commission.
(b) The United States shall promote this policy by:
(a) “Final Recommendations” means the
(b) The term “coastal and marine spatial planning” means a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas. Coastal and marine spatial planning identifies areas most suitable for various types or classes of activities in order to reduce conflicts among uses, reduce environmental impacts, facilitate compatible uses, and preserve critical ecosystem services to meet economic, environmental, security, and social objectives. In practical terms, coastal and marine spatial planning provides a public policy process for society to better determine how the ocean, our coasts, and Great Lakes are sustainably used and protected—now and for future generations.
(c) The term “coastal and marine spatial plans” means the plans that are certified by the National Ocean Council as developed in accordance with the definition, goals, principles, and process described in the Final Recommendations.
(b) The Council shall consist of the following:
(c) The Co-Chairs shall invite the participation of the Chairman of the Federal Energy Regulatory Commission, to the extent consistent with the Commission's statutory authorities and legal obligations, and may invite the participation of such other independent agencies as the Council deems appropriate.
(d) The Co-Chairs of the Council, in consultation with the National Security Advisor and the Assistant to the President for Homeland Security and Counterterrorism, shall regularly convene and preside at meetings of the Council, determine its agenda, direct its work, and, as appropriate to address particular subject matters, establish and direct committees of the Council that shall consist exclusively of members of the Council.
(e) A member of the Council may designate, to perform committee functions of the member, any person who is within such member's department, agency, or office and who is (i) an officer of the United States appointed by the President, (ii) a member of the Senior Executive Service or the Senior Intelligence Service, (iii) a general officer or flag officer, or (iv) an employee of the Vice President.
(f) Consistent with applicable law and subject to the availability of appropriations, the Office of Science and Technology Policy and the Council on Environmental Quality shall provide the Council with funding, including through the National Science and Technology Council or the Office of Environmental Quality. The Council on Environmental Quality shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support necessary to implement this order.
(g) The day-to-day operations of the Council shall be administered by a Director and a Deputy Director, who shall supervise a full-time staff to assist the Co-Chairs in their implementation of this order.
(b) To implement the policy set forth in section 2 of this order, the Council shall provide appropriate direction to ensure that executive departments', agencies', or offices' decisions and actions affecting the ocean, our coasts, and the Great Lakes will be guided by the stewardship principles and national priority objectives set forth in the Final Recommendations, to the extent consistent with applicable law. The Council shall base its decisions on the consensus of its members. With respect to those matters in which consensus cannot be reached, the National Security Advisor shall coordinate with the Co-Chairs and, as appropriate, the Assistants to the President for Energy and Climate Change, and Economic Policy, and the employee of the United States designated by the Vice President, subject to the limitations set forth in section 9 of this order, to present the disputed issue or issues for decision by the President.
(b) Each executive department, agency, and office that is required to take actions under this order shall prepare and make publicly available an annual report including a concise description of actions taken by the agency in the previous calendar year to implement the order, a description of written comments by persons or organizations regarding the agency's compliance with this order, and the agency's response to such comments.
(c) Each executive department, agency, and office that is required to take actions under this order shall coordinate and contribute resources, as appropriate, to assist in establishing a common information management system as defined in the Final Recommendations and shall be held accountable for managing its own information assets by keeping them current, easily accessible, and consistent with Federal standards.
(d) To the extent permitted by law, executive departments, agencies, and offices shall provide the Council such information, support, and assistance as the Council, through the Co-Chairs, may request.
(b) Nothing in this order shall be construed to impair or otherwise affect the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) In carrying out the provisions of this order and implementing the Final Recommendations, all actions of the Council and the executive departments, agencies, and offices that constitute it shall be consistent with applicable international law, including customary international law, such as that reflected in the Law of the Sea Convention.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.