Agricultural Marketing Service
Forest Service
Engineers Corps
National Oceanic and Atmospheric Administration
Air Force Department
Defense Acquisition Regulations System
Engineers Corps
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Geological Survey
Land Management Bureau
National Park Service
Employee Benefits Security Administration
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Comptroller of the Currency
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Agricultural Marketing Service, USDA.
Final rule.
The Agricultural Marketing Service (AMS) is amending the Cotton Board Rules and Regulations by increasing the value assigned to imported cotton for calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. An amendment is required to adjust the assessments collected on imported cotton and the cotton content of imported products to be the same as those paid on domestically produced cotton. In addition, AMS is changing the Harmonized Tariff Schedule (HTS) statistical reporting numbers that were amended since the last assessment adjustment.
Shethir M. Riva, Chief, Research and Promotion Staff, Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia 22406, telephone (540) 361-2726, facsimile (540) 361-1199, or email at
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Cotton Research and Promotion Act (7 U.S.C. 2101-2118) (Act) provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 12 of the Act, any person subject to an order may file with the Secretary of Agriculture (Secretary) a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the District Court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of ruling.
Amendments to the Act were enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101-624, 104 Stat. 3909, November 28, 1990). These amendments contained two provisions that authorized changes in the funding procedures for the Cotton Research and Promotion Program.
These provisions are: (1) The authority to assess imported cotton and cotton products; and (2) the termination of the right of cotton producers to demand a refund of assessments.
As amended, the Cotton Research and Promotion Order (7 CFR part 1205) (Order) was approved by cotton producers and importers voting in a referendum held July 17-26, 1991, and the amended Order was published in the
This rule increases the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR 1205.510(b)(2)). The total value of assessments levied is determined using a two-part assessment. The first part of the assessment is levied on the weight of cotton imported at a rate of $1 per 500-pound bale of cotton or $1 per 226.8 kilograms of cotton. The second part of the assessment—known as the supplemental assessment—is levied at a rate of
Section 1205.510(b)(2) of the Cotton Research and Promotion Rules and Regulations provides for the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of domestically produced cotton, imported raw cotton and the cotton content of imported cotton-containing products. Use of the same weighted average price ensures that assessments paid on domestically produced cotton and assessments on imported cotton are the same. The source of price statistics is
The current value of imported cotton as published in the
An example of the complete assessment formula and how the figures are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
A 500-pound bale equals 226.8 kg. (500 × .453597).
$1 per bale assessment equals $0.002000 per pound or $0.2000 cents per pound (1/500) or $0.004409 per kg. or $0.4409 cents per kg. (1/226.8).
The 2011 calendar year weighted average price received by producers for Upland cotton is $0.880 per pound or $1.940 per kg. (0.880 × 2.2046).
The total assessment per kilogram of raw cotton is obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg. and the supplemental assessment $0.009700 per kg. which equals $0.014109 per kg.
The current assessment on imported cotton is $0.012665 per kilogram of imported cotton. The new assessment is $0.014109, an increase of $0.001444 per kilogram. This increase reflects the increase in the average weighted price of Upland Cotton Received by U.S. Farmers during the period January through December 2011. The Import Assessment Table in section 1205.510(b)(3) indicates the conversion factors used to estimate cotton equivalent quantities and the total assessment per kilogram due for each HTS number subject to assessment. Since the weighted average price of cotton that serves as the basis of the supplemental assessment calculation has changed, total assessment rates reported in this table have been revised.
AMS also compared the current import assessment table with the U.S. International Trade Commission's (ITC) 2012 HTS and information from U.S. Customs and Border Protection and identified HTS statistical reporting numbers that have been updated and removed. In addition, AMS contacted USDA's Economic Research Service, who provided the updated cotton conversion factors for the new or updated HTS codes.
A proposed rule was published on June 12, 2012, with a comment period of June 12, 2012, through July 12, 2012 (77 FR 34855). AMS received three comments from interested organizations representing segments of the cotton or manufacturing industry. All comments received are available for public inspection at Cotton and Tobacco Programs, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia, 22406, during regular business hours. Comments may also be found at
One commenter, who represents the national trade organization representing the U.S. raw cotton industry and its membership includes producers, inners, warehousemen, cottonseed crushers and dealers, private and cooperative merchants, and textile manufacturers, supported the proposed rule and the formula developed by the Food, Agriculture, Conservation and Trade Act of 1990. This commenter urged AMS to expeditiously implement the new rate in order to properly assess imported cotton and cotton containing products at the new rate.
Two other commenters did not support the increased assessment. One of the opposing commenters, who represents 200 retailers, product manufacturers, and service suppliers, questioned the need for another increase after the increase in 2011 and stated that this increase would further escalate costs and unfairly burden many companies within the cotton supply chain. This commenter cited that this increase combined with the 2011 increase would add an additional 30 percent to the fee that retailers pay for imported cotton, costing up to hundreds of thousands of dollars a year per company.
Section 1205.510, “Levy of assessments,” provides “the rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States.” In addition, section 1205.510 provides that the 12-month average of monthly weighted average prices received by U.S. farmers will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton. AMS used the 2011 price statistics found in Agricultural Prices, a publication of the National Agricultural Statistics Service of the Department of Agriculture, to calculate the average weighted price and convert it to arrive at the new rate of 1.4109 cents per kilogram. Therefore, AMS has made no changes to the proposed rule based on this comment.
The other opposing commenter, whose organization represents the entire spectrum of international trade across all industry sectors, stated its concern that the importer fee was paid into the U.S. Treasury where only a portion of the money collected is appropriated for its stated purpose. The commenter stated its belief that the balance of such funds is often used to offset budget deficits or designated for other uses. In addition, the commenter stated that it is difficult for companies to absorb any increased costs. No monies are transferred into the general fund of the U.S. Treasury. All funds collected by the Board are used for the Cotton Research and Promotion Program in accordance with the Act. Assessments on domestic cotton production and cotton imports are maintained by the Cotton Board, who is charged with administering the Cotton Research and Promotion Program.
In accordance with the Regulatory Flexibility Act (RFA) [5 U.S.C. 601-612], AMS examined the economic impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such action so that small businesses will not be unduly or disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (importers) as having receipts of no more than $7,000,000. An estimated 13,000 importers are subject to the rules and regulations issued pursuant to the Cotton Research and Promotion Order. Most are considered small entities as defined by the Small Business Administration.
This final rule only affects importers of cotton and cotton-containing products, and it raises the assessments paid by the importers under the Cotton Research and Promotion Order. The current assessment on imported cotton is $0.012665 per kilogram, which is equivalent to 1.088 cents per kilogram, of imported cotton. The new assessment is $0.014109 which is equivalent to 1.4109 cents per kilogram and was calculated based on the 12-month average of monthly weighted average prices received by U.S. cotton farmers. Section 1205.510, “Levy of assessments,” provides “the rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States.” In addition, section 1205.510 provides that the 12-month average of monthly weighted average prices received by U.S. farmers will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton. AMS used the 2010 price statistics found in
Under the Cotton Research and Promotion Program, assessments are used by the Cotton Board to finance
Importers with line-items appearing on U.S. Customs and Border Protection documentation with value of the cotton contained therein results of an assessment of two dollars ($2.00) or less will not be subject to assessments. In addition, imported cotton and products may be exempt from assessment if the cotton content of products is U.S. produced, cotton other than Upland, or imported products that are eligible to be labeled as 100 percent organic under the National Organic Program (7 CFR part 205) and who is not a split operation.
There are no Federal rules that duplicate, overlap, or conflict with this rule.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. chapter 35) the information collection requirements contained in the regulation that needed to be amended have been previously approved by OMB and were assigned control number 0581-0093. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble 7 CFR part 1205 is amended as follows:
7 U.S.C. 2101-2118.
(b) * * *
(2) The 12-month average of monthly weighted average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton and will be expressed in kilograms. The value of imported cotton for the purpose of levying this supplemental assessment is 1.4109 cents per kilogram.
(3) * * *
(ii) * * *
7 U.S.C. 2101-2118.
Nuclear Regulatory Commission.
Final rule and regulatory guide, issuance.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is amending its regulations related to verification of nuclear power plant construction activities through inspections, tests, analyses, and acceptance criteria (ITAAC) under a combined license, and issuing a revision to Regulatory Guide (RG) 1.215, “Guidance for ITAAC Closure Under 10 CFR [Title 10 of the
The effective date is September 27, 2012.
Please refer to Docket ID NRC-2010-0012 when contacting the NRC about the availability of information for this final rule. You can access information and comment submittals related to this final rule, which the NRC possesses and are publicly available, by any of the following methods:
•
•
•
Mr. Earl R. Libby, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-0522; email:
The Commission first issued 10 CFR part 52, “Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Reactors” on April 18, 1989 (54 FR 15372). Section 52.99, “Inspection during construction,” was included to make it clear that the NRC's inspection carried out during construction under a combined license would be based on ITAAC proposed by the applicant, approved by the NRC staff, and incorporated in the combined license. At that time, the Commission made it clear that, although 10 CFR 52.99 envisioned a “sign-as-you-go” process in which the NRC staff would sign off on inspection units and notice of the staff's sign-off would be published in the
On August 28, 2007 (72 FR 49352), the Commission revised 10 CFR part 52 to enhance the NRC's regulatory effectiveness and efficiency in implementing its licensing and approval processes. In that revision, the NRC amended 10 CFR 52.99 to require licensees to notify the NRC that the prescribed inspections, tests, or analyses in the ITAAC have been completed and that the acceptance criteria have been met. The revision also requires that these notifications contain sufficient information to demonstrate that the prescribed inspections, tests, or analyses have been performed and that the prescribed acceptance criteria have been met. The statement of considerations for the 2007 rule indicated that this requirement would ensure that combined license applicants and holders were aware that it was the licensee's burden to demonstrate compliance with the ITAAC and that the notification of ITAAC completion will contain more information than just a simple statement that the licensee
Under Section 185b of the AEA and 10 CFR 52.97(b), a combined license for a nuclear power plant (a “facility”) must contain those ITAAC that are “necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity with” the license, the AEA, and the NRC regulations. Following issuance of the combined license, Section 185b of the AEA and 10 CFR 52.99(e) require that the Commission “ensure that the prescribed inspections, tests, and analyses are performed.” Finally, before operation of the facility, Section 185b of the AEA and 10 CFR 52.103(g) require that the Commission find that the “prescribed acceptance criteria
As currently required by 10 CFR 52.99(c)(1), the licensee must submit ITAAC closure notifications containing “sufficient information to demonstrate that the prescribed inspections, tests, and analyses have been performed and that the associated acceptance criteria have been met.” These notifications perform two functions. First, they alert the NRC to the licensee's completion of the ITAAC
After completing the 2007 rulemaking, the NRC began developing guidance on the ITAAC closure process and the requirements under 10 CFR 52.99. In October 2009, the NRC issued regulatory guidance for the implementation of the revised 10 CFR 52.99 in RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52.” This RG endorsed guidance developed by the Nuclear Energy Institute (NEI) in NEI 08-01, “Industry Guideline for the ITAAC Closure Process Under 10 CFR part 52,” Revision 3, issued January 2009 (ADAMS Accession No. ML090270415).
After considering information presented by industry representatives in a series of public meetings, the NRC realized that some additional implementation issues were left unaddressed by the various provisions in 10 CFR part 52. In particular, the NRC determined that the combined license holder should provide additional notifications to the NRC following the notification of ITAAC completion currently required by 10 CFR 52.99(c)(1). The NRC refers to the time after this ITAAC closure notification, but before the date the Commission makes the finding under 10 CFR 52.103(g), as the ITAAC maintenance period. Most recently, the NRC held two public meetings in March 2010 to discuss draft proposed rule text that it made available to the public in February 2010. The NRC considered feedback given from external stakeholders during those meetings in its development of this final rule. Finally, in March 2010, the NRC issued Inspection Procedure 40600, “Licensee Program for ITAAC Management,” which provides guidance to verify that licensees have implemented ITAAC maintenance programs to ensure that structures, systems, and components continue to meet the ITAAC acceptance criteria until the Commission makes the finding under 10 CFR 52.103(g) allowing operation.
The NRC published a proposed rule on the Requirements for Maintenance of Inspections, Tests, Analyses and Acceptance Criteria in the
The NRC received one public comment submission on the proposed rule containing 11 comments from one industry organization, NEI (ADAMS Accession No. ML11208C708). The NRC received one public comment submission, from NEI, containing 22 comments on the RG (ADAMS Accession No. ML11209C487). Comments on the proposed rule are discussed separately from the comments on the draft regulatory guide.
There were two types of comments on the proposed rule:
1. Comments that were general in nature to the proposed rule language.
2. Comments that were specific in nature to the proposed rule supplementary information.
The NEI submission contained two general comments on the proposed rule and nine specific comments on the proposed rule supplementary information. The NRC has carefully considered the public comments received during the comment period and is adopting a final rule that is substantially similar to the proposed rule with one change to § 52.99(e)(2). The NEI generally supported the approach and objective of the proposed rule and the associated regulatory guidance.
All comments are identified uniquely by using the formation [Comment X, p. Y] where [Comment X] represents the sequential comment number and [p. Y] represents the comment submission page number.
The nine specific comments received on the proposed rule contained recommendations for changes to the supplementary information to correctly reflect common terminology between the rule supplementary information, the associated RG 1.215 and the industry guidance contained within Revision 4 of NEI 08-01 (ADAMS Accession No. ML102010051). These nine specific comments all addressed discussion in the statement of considerations (SOC) (the
The NRC published the draft regulatory guide for the proposed rule, RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52” (DG-1250) in the
The NRC received 1 public comment submission on the regulatory guide containing 25 comments from 1 industry organization, NEI (ADAMS Accession No. ML11209C487). The NRC's responses to the public comments are contained in “Response to Public Comments on Draft Regulatory Guide DG-1250 proposed Revision 1 of RG 1.215, `Guidance for ITAAC Closure Under 10 CFR Part 52'” (ADAMS Accession No. ML11284A006).
The NRC is requiring the following new notifications with respect to ITAAC closure:
• ITAAC post-closure notification, and
• All ITAAC complete notification.
In general, the reasons for these new notifications are analogous to the reasons presented in the 2007 rulemaking for the existing 10 CFR 52.99(c) notifications: (1) To ensure that the NRC has sufficient information, in light of new information developed or identified after the ITAAC closure notification under 10 CFR 52.99(c)(1), to complete all of the activities necessary for the NRC to make a determination on ITAAC; and (2) to ensure that interested persons have access to information on ITAAC at a level of detail sufficient to address the AEA Section 189a(1)(B) threshold for requesting a hearing. After evaluating the various means of ensuring that the Commission has sufficient information to make a determination on ITAAC, and that interested persons have access to sufficient ITAAC information, the NRC has provided a rule augmented by guidance. The details of timing and content of the new notifications are captured in guidance that was issued for public comment simultaneously with the proposed rule, as discussed in more detail in Section V, “Availability of Regulatory Guidance,” of this document. The NRC believes that this approach allows more flexibility to adjust the guidance based on lessons learned during early implementation of the ITAAC process under the first combined licenses. Based upon the NRC's experience with the overall NRC oversight and verification of ITAAC, the notification provisions of the rule, the ITAAC hearing process, and the process for making the 10 CFR 52.103(g) finding, the NRC may revise and supplement the final guidance on the timing and content of notifications. The NRC notes that it would not rely solely on the existence of this rulemaking as a primary basis for the 10 CFR 52.103(g) finding. Rather, the NRC would use a holistic review using results from the NRC's construction inspection program and ITAAC closure review process as primary factors supporting a conclusion that the acceptance criteria in the combined license are met.
Each of the notification requirements in this rulemaking, and the bases for each of the requirements, are described in Section III.B, “Additional ITAAC Notifications,” of this document. The NRC also included several editorial changes to 10 CFR 52.99 in paragraphs (b), (c)(1), final (c)(3) (former (c)(2)), and (d)(1). In all of these cases, the NRC is replacing the phrase “acceptance criteria have been met” with the phrase “acceptance criteria are met” for consistency with the wording of the requirement in 10 CFR 52.103(g) on the Commission's ITAAC finding, which is derived directly from wording in the AEA. In addition, the NRC changed 10 CFR 52.99(d)(2) to replace the phrase “ITAAC has been met” with the phrase “prescribed acceptance criteria are met” for consistency with the wording in 10 CFR 52.99(d)(1).
One essential element in ensuring the maintenance of successfully completed ITAAC involves the use of established licensee programs such as the Quality Assurance Program, Problem Identification and Resolution Program, Maintenance/Construction Program, and Design and Configuration Management Program. Each program credited with supporting the maintenance of completed ITAAC should contain attributes that maintain the validity of the ITAAC determination basis. These program attributes include the following:
• Licensee screening of activities and events for impact on ITAAC;
• Licensee determination of whether supplemental ITAAC notification is required; and
• Licensee supplementation of the ITAAC completion package, as appropriate, to demonstrate that the acceptance criteria continue to be met.
The NRC expects these programs to be fully implemented and effective before the licensee takes credit for them as an appropriate means of supporting ITAAC maintenance. These programs will be subject to NRC inspection.
The first new notification is contained in 10 CFR 52.99(c)(2), “ITAAC post-closure notifications,” and would be required following the licensee's ITAAC closure notifications under 10 CFR 52.99(c)(1) until the Commission makes the finding under 10 CFR 52.103(g). This provision in 10 CFR 52.99(c)(2) would require the licensee to provide the NRC with timely notification of new information materially altering the basis for determining that either inspections, tests, or analyses were performed as required, or that acceptance criteria are met (referred to as the
The licensee is responsible for maintaining the validity of the ITAAC conclusions after completion of the ITAAC. If the ITAAC determination basis is materially altered, the licensee is expected to notify the NRC. Through public workshops and stakeholder interaction, the NRC developed thresholds to identify when activities would materially alter the basis for determining that a prescribed inspection, test, or analysis was performed as required, or finding that a prescribed acceptance criterion is met. One obvious case is that a notification under paragraph (c)(2) is required to correct a material error or omission in the original ITAAC closure notification. The “materially altered determination” is further developed in RG 1.215 and in the industry guidance in NEI 08-01, Revision 4.
Section 52.6, “Completeness and accuracy of information,” paragraph (a), requires that information provided to the Commission by a licensee be complete and accurate in all material respects. However, it might be the case that the original closure notification was complete and accurate when sent, but subsequent events materially alter the ITAAC determination basis. Also, a
1. Material errors and omissions in ITAAC closure notifications, relevant to the accuracy and completeness of the documented basis for the Commission's finding on ITAAC, may nonetheless be determined in isolation by a licensee as not having a significant implication for public health and safety or common defense and security.
2. A Commission finding of compliance with acceptance criteria in the ITAAC at the time of the finding is required, under Section 185b of the AEA, in order for the combined license holder to commence operation.
3. The addition of specific reporting requirements addressing information relevant and material to the ITAAC finding ensures that the NRC will get the necessary reports as a matter of regulatory requirement and allows the NRC to determine the timing and content of these reports so that they serve the regulatory needs of the NRC.
Therefore, the NRC intends that these issues will be reported under 10 CFR 52.99(c)(2). In addition to the reporting of material errors and omissions, the NRC has identified other circumstances in which reporting under this provision would be required (i.e., reporting thresholds). These reporting thresholds are described in more detail in Section IV, “Section-by-Section Analysis,” of this document.
When making the 10 CFR 52.103(g) finding, the NRC must have sufficient information to determine that the relevant acceptance criteria are met despite the new information prompting the notification under paragraph (c)(2). Apart from the NRC's use of the information, the NRC also believes that public availability of such information is necessary to ensure that interested persons will have sufficient information to review when preparing a request for a hearing under 10 CFR 52.103, comparable to the information provided under paragraph (c)(1), as described in the Statement of Considerations for the 2007 part 52 rulemaking. See August 28, 2007; 72 FR 49352, at 49384 (second and third columns). Accordingly, the NRC requires that after a licensee identifies new information materially altering the ITAAC determination basis, the licensee must then submit what is essentially a “resolution” notification to the NRC in the form of an ITAAC post-closure notification. The ITAAC post-closure notification, described in paragraph (c)(2), requires the licensee to submit a written notification of the resolution of the circumstances surrounding the identification of new information materially altering the ITAAC determination basis. The ITAAC post-closure notification must contain sufficient information demonstrating that, notwithstanding the information that prompted notification, the prescribed inspections, tests, and analyses have been performed as required and the prescribed acceptance criteria are met. The ITAAC post-closure notifications should explain the need for the notification, outline the resolution of the issue, and confirm that the ITAAC acceptance criteria continue to be met. The ITAAC post-closure notifications must include a level of detail similar to the level of information required in initial ITAAC closure notifications under 10 CFR 52.99(c)(1).
Section 52.99(c)(2) states that licensees must make the notification “in a timely manner.” Further discussion of what the NRC considers “timely” can be found in the NRC guidance being issued simultaneously with this final rule, as discussed in more detail in Section V, “Availability of Regulatory Guidance,” of this document.
The NRC provides that the notification be available for public review under paragraph (e)(2). This helps ensure public availability and accessibility of important information on ITAAC closure. Further explanation of the basis for the availability requirement is presented under the discussion on 10 CFR 52.99(e)(2) in Section IV, “Section-by-Section Analysis,” of this document.
Events that affect completed ITAAC could involve activities that include, but are not limited to, maintenance and engineering programs, or design changes. The NRC expects that licensees will carry out these activities under established programs to maintain ITAAC conclusions and that no post-closure notification will be necessary in most instances. The NRC can have confidence that prior ITAAC conclusions are maintained, as long as the ITAAC determination basis established by the original ITAAC closure notification is not materially altered. If the ITAAC determination basis is not materially altered, then licensee activities will remain below the notification threshold of 10 CFR 52.99(c)(2). If the ITAAC determination basis is materially altered, then the licensee is required to notify the NRC under 10 CFR 52.99(c)(2).
Although the NRC is requiring that licensees notify the NRC of information materially altering the ITAAC determination basis only after the licensee has evaluated and resolved the issue prompting the notification, the NRC encourages licensees to communicate with the NRC early in its evaluation process. The purpose of this early communication would be to alert the NRC staff to the fact that additional activities may be scheduled that affect a structure, system, or component (including physical security hardware) or program element for which one or more ITAAC have been closed. This will allow the NRC inspection staff to discuss the licensee's plans for resolving the issue to determine if the staff wants to observe any of the upcoming activities for the purpose of making a future staff determination about whether the acceptance criteria for those ITAAC continue to be met.
Another notification that the NRC is requiring is the “all ITAAC complete” notification under 10 CFR 52.99(c)(4). The purpose of this notification is to facilitate the required Commission finding under 10 CFR 52.103(g) that the acceptance criteria in the combined license are met. After, or concurrent with, the last ITAAC closure notification required by 10 CFR 52.99(c)(1), the licensee is required to notify the NRC that all ITAAC are complete. When the licensee submits the all ITAAC complete notification, the NRC would expect that all activities requiring ITAAC post-closure notifications have been completed and that the associated ITAAC determination bases have been updated.
To support the Commission's finding under 10 CFR 52.103(g) that the acceptance criteria in the combined license are met, the NRC staff will, if and when appropriate, send a recommendation to the Commission to make a finding that all of the specified acceptance criteria are met. The staff will consider that all acceptance criteria “are met” if both of the following conditions hold:
• All ITAAC were verified to be met at one time; and
• The licensee provides confidence, in part through the notifications in 10 CFR 52.99(c), that the ITAAC determination bases have been maintained and the ITAAC acceptance criteria continue to be met; and the NRC has no reasonable information to the contrary.
This approach will allow licensees to have ITAAC-related structures, systems, or components, or security or emergency preparedness related hardware, undergoing maintenance or certain other activities at the time of the 10 CFR 52.103(g) finding, if the programs credited with maintaining the validity of completed ITAAC guide those activities and the activities are not so significant as to exceed a threshold for reporting. If a reporting threshold has been exceeded, then the NRC would need to evaluate the licensee's ITAAC post-closure notification to determine whether the ITAAC continue to be met. Reporting thresholds are discussed in more detail in Section IV, “Section-by-Section Analysis,” of this document.
This final rule does not contain specific ITAAC documentation and record retention requirements. Consistent with regulatory provisions such as 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities,” Appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,” licensees are expected to prepare and retain records supporting the vast majority of ITAAC processes, including the activities supporting the notifications that are required by this final rule. Accordingly, the NRC has not included specific documentation and record retention requirements in this final rule. If the NRC inspections disclose substantial issues with licensees' records on ITAAC maintenance, the NRC will revisit the need for explicit documentation and record retention requirements on ITAAC maintenance.
Section 52.99(e)(1) requires that the NRC publish in the
The 2007 10 CFR part 52 rulemaking amended 10 CFR 2.340, “Initial decision in certain contested proceedings; immediate effectiveness of initial decisions; issuance of authorizations, permits, and licenses,” to clarify, among other things, the scope of the presiding officer's decision in various kinds of NRC proceedings, and remove the requirement for direct Commission involvement in all production and utilization facility licensing proceedings.
Section 2.340(j) was intended to address these matters in connection with the Commission finding on acceptance criteria and any associated hearing under 10 CFR 52.103. In the course of developing this final rule, the NRC determined that 10 CFR 2.340(j) contains several inconsistencies with the statutory language in Section 185b of the AEA, and could more clearly describe possible ways in which a presiding officer decision may lead to a Commission decision on acceptance criteria. The changes, together with the bases for the changes, are described in the following paragraphs.
Section 2.340(j) currently states that the Commission makes a finding under 10 CFR 52.103(g) that acceptance criteria “have been or will be met.” This is incorrect; the Commission's finding under 10 CFR 52.103(g) is that the acceptance criteria “are met,” which is the statutory requirement under Section 185b of the AEA. To correct this error, the NRC has amended the introductory language of 10 CFR 2.340(j) to use the correct phrase, “acceptance criteria * * * are met * * *.”
In addition, 10 CFR 2.340(j), as currently written, does not distinguish among the various circumstances in a contested proceeding where a presiding officer's decision (that acceptance criteria have been met, or will be met) is followed by the overall finding under 10 CFR 52.103(g) that acceptance criteria are met (as required by Section 185b of the AEA). It is not clear from the current language of § 2.340(j) that the presiding officer's initial decision on a contention that acceptance criteria have been met or will be met, does not obviate the need for the Commission (or the appropriate Director) to make the required finding (under Section 185b of the AEA and 10 CFR 52.103(g)) that the acceptance criteria are met. To illustrate this point by counter example, the presiding officer could make, in the initial decision, a “predictive finding” that acceptance criteria “will be met.” Thereafter, the combined license holder would complete the prescribed inspection, test and/or analysis and inform the NRC under § 52.99 that the acceptance criteria have been met. Nonetheless, the Commission (or the appropriate Director) may determine—based on,
The primary changes on ITAAC maintenance by the NRC in this rulemaking are to 10 CFR 52.99. The changes to 10 CFR 2.340 are corrections.
Paragraph (j) was amended to allow the Commission (or the appropriate NRC Office Director) in a contested proceeding to make the finding under 10 CFR 52.103(g) that the acceptance criteria in a combined license are met, under certain circumstances that are delineated in greater detail in paragraphs (j)(1) through (4). This compares with the current rule, which
Paragraph (j)(1) clarifies that the Commission may not make the overall 10 CFR 52.103(g) finding unless it is otherwise able to find that all uncontested acceptance criteria (i.e., “acceptance criteria not within the scope of the initial decision of the presiding officer”) are met. The phrase “otherwise able to make” conveys the NRC's determination that the Commission's process for supporting a Commission finding on uncontested acceptance criteria is unrelated to and unaffected by the timing of the presiding officer's initial decision on contested acceptance criteria.
Paragraph (j)(2) clarifies that a presiding officer's initial decision, which finds that acceptance criteria have been met, is a necessary, but not sufficient prerequisite for the Commission to make a finding that the contested acceptance criteria (i.e., the criteria that are the subject of the presiding officer's initial decision) are met. The Commission must thereafter—even if the presiding officer's initial decision finds that the contested acceptance criteria have been met—be able to make a finding that the contested criteria are met after considering: 1) information submitted in the licensee notifications pursuant to 10 CFR 52.99, and 2) the NRC staff's findings, with respect to these notifications, to issue the overall 10 CFR 52.103 finding. By using the word “thereafter,” the NRC intends to emphasize that the Commission would not make a finding that contested acceptance criteria are met in advance of the presiding officer's initial decision on those acceptance criteria.
Paragraph (j)(3) expresses the same concept as paragraph (j)(2), but as applied to findings that acceptance criteria will be met. Thus, even if a presiding officer's initial decision finds that the contested acceptance criteria will be met, the Commission must thereafter be able to make a finding that the contested criteria are met after considering: (1) Information submitted in an ITAAC closure notification pursuant to 10 CFR 52.99(c)(1); 2) information submitted in the licensee notifications pursuant to 10 CFR 52.99(c)(2) and (c)(4); and 3) the NRC staff's findings with respect to such notifications, to issue the overall 10 CFR 52.103 finding.
Paragraph (j)(4) is the same as the existing provision in 10 CFR 2.340(j)(2). This paragraph provides that the Commission may make the 10 CFR 52.103(g) finding notwithstanding the pendency of a petition for reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 2.341, a motion for a stay under 10 CFR 2.342, or a petition under 10 CFR 2.206.
The NRC notes that 10 CFR 2.340(j) is not intended to be an exhaustive “roadmap” to a possible 10 CFR 52.103(g) finding that acceptance criteria are met. For example, this provision does not directly address what must occur for the Commission to make a 10 CFR 52.103(g) finding where the presiding officer finds, with respect to a contention, that acceptance criteria have not been or will not be met. The NRC also notes that this provision applies only to contested proceedings. If there is no hearing under 10 CFR 52.103 or if the hearing ends without a presiding officer's initial decision on the merits (e.g., a withdrawal of the sole party in a proceeding), then 10 CFR 2.340(j) does not govern the process by which the Commission (or the appropriate staff Office Director) makes the 10 CFR 52.103(g) finding.
Although the NRC is not making changes to every paragraph under 10 CFR 52.99, for simplicity, this rulemaking would replace the section in its entirety. Therefore, the NRC is providing a section-by-section discussion for every paragraph in 10 CFR 52.99. For those paragraphs where little or no change is being proposed, the NRC is repeating the section-by-section discussion from the 2007 major revision to 10 CFR part 52 with editorial and conforming changes, as appropriate.
The purpose of this section is to present the requirements to support the NRC's inspections during construction, including requirements for ITAAC schedules and notifications and for NRC notices of ITAAC closure. The title of this section was changed from
The NRC is not making any changes to § 52.99(a). Paragraph (a) requires that the licensee submit to the NRC, no later than 1 year after issuance of the combined license or at the start of construction as defined at 10 CFR 50.10, whichever is later, its schedule for completing the inspections, tests, or analyses in the ITAAC. This provision also requires the licensee to submit updates to the ITAAC schedule every 6 months thereafter and, within 1 year of its scheduled date for initial loading of fuel, licensees must submit updates to the ITAAC schedule every 30 days until the final notification is provided to the NRC under § 52.99(c)(1). The information provided by the licensee will be used by the NRC in developing the NRC's inspection activities and activities necessary to support the Commission's finding whether all of the ITAAC are met prior to the licensee's scheduled date for fuel load. Even in the case where there were no changes to a licensee's ITAAC schedule during an update cycle, the NRC expects the licensee to notify the NRC that there have been no changes to the schedule.
The NRC is making an editorial change to the last sentence of § 52.99(b) to replace the words “have been met” with “are met” for consistency with the requirements of Section 185b of the AEA, as implemented in 10 CFR 52.103(g). The purpose of the requirement in 10 CFR 52.99(b) is to clarify that an applicant may proceed at its own risk with design and procurement activities subject to ITAAC, and that a licensee may proceed at its own risk with design, procurement, construction, and preoperational testing activities subject to an ITAAC, even though the NRC may not have found that any particular ITAAC are met.
The NRC has made editorial changes in § 52.99(c)(1) to replace the words “have been met” with “are met.” Section 52.99(c)(1) requires the licensee to notify the NRC that the prescribed inspections, tests, and analyses have been performed and that the prescribed acceptance criteria are met. Section 52.99(c)(1) further requires that the notification contain sufficient information to demonstrate that the prescribed inspections, tests, and analyses have been performed and that the prescribed acceptance criteria are met.
The NRC has renumbered current § 52.99(c)(2) as paragraph (c)(3). In addition, the NRC has made an editorial change to the last sentence in final § 52.99(c)(3) (former 10 CFR 52.99(c)(2))
Section 52.99(c) ensures that: (1) The NRC has sufficient information to complete all of the activities necessary for the Commission to make a finding as to whether all of the ITAAC are met prior to initial operation, and (2) interested persons will have access to information on both completed and uncompleted ITAAC at a level of detail sufficient to address the AEA Section 189a(1)(B) threshold for requesting a hearing on acceptance criteria. It is the licensee's burden to demonstrate compliance with the ITAAC, and the NRC expects the information submitted under paragraph (c)(1) to contain more than just a simple statement that the licensee believes the ITAAC has been completed and the acceptance criteria met. The NRC would expect the notification to be sufficiently complete and detailed so that a reasonable person could understand the basis for the licensee's representation that the inspections, tests, and analyses have been successfully completed and the acceptance criteria are met. The term “sufficient information” would require, at a minimum, a summary description of the basis for the licensee's conclusion that the inspections, tests, or analyses have been performed and that the prescribed acceptance criteria are met.
Furthermore, with respect to uncompleted ITAAC, it is the licensee's burden to demonstrate that it will comply with the ITAAC, and the NRC would expect the information that the licensee submits under proposed paragraph (c)(3) to be sufficiently detailed so that the NRC staff can determine what activities it will need to undertake to determine if the acceptance criteria for each of the uncompleted ITAAC are met, once the licensee notifies the NRC that those ITAAC have been successfully completed and their acceptance criteria met. The term “sufficient information” requires, at a minimum, a summary description of the basis for the licensee's conclusion that the inspections, tests, or analyses will be performed and that the prescribed acceptance criteria will be met. In addition, “sufficient information” includes, but is not limited to, a description of the specific procedures and analytical methods to be used for performing the inspections, tests, and analyses and determining that the acceptance criteria are met.
The NRC notes that, even though it did not include a provision requiring the completion of all ITAAC by a certain time prior to the licensee's scheduled fuel load date, the NRC staff will require some period of time to perform its review of the last ITAAC once the licensee submits its notification that the ITAAC has been successfully completed and the acceptance criteria met. In addition, the Commission itself will require some period of time to perform its review of the staff's conclusions regarding all of the ITAAC and the staff's recommendations regarding the Commission finding under 10 CFR 52.103(g).
The NRC has added a new paragraph (c)(2) that would require the licensee to notify the NRC, in a timely manner, of new information that materially alters the basis for determining that either inspections, tests, or analyses were performed as required, or that acceptance criteria are met. The notification must contain sufficient information to demonstrate that, notwithstanding the new information, the prescribed inspections, tests, or analyses have been performed as required, and the prescribed acceptance criteria are met. Fundamentally, those circumstances requiring notification under proposed paragraph (c)(2) fall into the following two categories:
• The information presented or referenced in the original 10 CFR 52.99(c)(1) notification is insufficient, either because it omits material information, or because the information is materially erroneous or incorrect, and the licensee discovers or determines there is a material omission or error after filing the original 10 CFR 52.99(c)(1) notification.
• The information presented or referenced in the original 10 CFR 52.99(c)(1) notification was complete (i.e., not omitting material information) and accurate (i.e., not materially erroneous), but there is new material information with respect to the subject of the original 10 CFR 52.99(c)(1) notification.
The term “materially altering” refers to situations in which there is information not contained in the 10 CFR 52.99(c)(1) notification that “has a natural tendency or capability to influence an agency decision maker” in either determining whether the prescribed inspection, test, or analysis was performed as required, or finding that the prescribed acceptance criterion is met. See Final Rule; Completeness and Accuracy of Information, December 31, 1987; 52 FR 49362, at 49363. Applying this concept in the context of 10 CFR 52.99(c), information for which notification would be required under paragraph (c)(2) is that information which, considered by itself or when considered in connection with information previously submitted or referenced by the licensee in a paragraph (c)(1) notification, relates to information which is necessary for any of the following:
• The licensee to assert that the prescribed inspections, tests, and analyses have been performed and the acceptance criteria are met;
• The NRC staff to determine if (and provide a recommendation to the Commission as to whether) the prescribed inspections, tests, and analyses were performed and the acceptance criteria are met; or
• The Commission to find that the acceptance criteria are met, as required by Section 185b of the AEA and 10 CFR 52.103(g).
The term “new information” falls into three categories:
• New information (i.e., a “discovery” or new determination identified after the 10 CFR 52.99(c)(1) notification) about the accuracy of material information provided in, referenced by, or necessary to support representations made in that notification.
• New information (i.e., a “discovery” or new determination identified after the 10 CFR 52.99(c)(1) notification) that previously existing information should have been, but was not provided, in the notification or referenced in the supporting documentation (i.e., an omission of material information).
• Information on a “new” event or circumstance (i.e., an event or circumstance occurring after the 10 CFR 52.99(c)(1) notification) that materially affects the accuracy or completeness of the basis—as reported or relied upon in
Applying these concepts, the NRC believes that the circumstances for which reporting under this provision would be required include:
•
•
•
•
•
Additional guidance on implementing these reporting thresholds is contained in the revision to RG 1.215, being issued simultaneously with this final rule. This guidance is discussed further in Section V, “Availability of Regulatory Guidance,” of this document.
Paragraph (c)(2) would require the licensee to submit an ITAAC post-closure notification documenting the resolution of the circumstances surrounding the identification of new material information. By “resolution,” the NRC means: (1) The completion of the licensee's technical evaluation of the issue and the determination as to whether the prescribed inspection, test, or analysis was performed as required; (2) licensee completion of any necessary corrective or supplemental actions; (3) licensee documentation of the issue and any necessary corrective or supplemental actions in order to bring the ITAAC determination basis up to date; and (4) ultimate licensee determination about whether the affected acceptance criteria continue to be met.
The information provided in the notification should be at a level of detail comparable to the ITAAC closure notification under paragraph (c)(1). The dual purposes of the proposed paragraph (c)(2) notification, as described in Section III.B, “Additional ITAAC Notifications,” of this document, are comparable to the purposes of the ITAAC closure notification in paragraph (c)(1). Thus, the NRC believes that the considerations for the content of the ITAAC closure notification, as discussed in the final 2007 10 CFR part 52 rule, apply to the paragraph (c)(2) notifications. See 72 FR 49450; August 28, 2007 (second column). It is the licensee's burden to demonstrate compliance with the ITAAC, taking into account any new information that materially alters the determination that a prescribed inspection, test, or analysis was performed as required or that a prescribed acceptance criterion is met. The NRC expects the paragraph (c)(2) notification to contain more than just a simple statement that the licensee has concluded, despite the material new information, that the prescribed inspection, test, or analysis was performed as required and that a prescribed acceptance criterion is met. The NRC expects the notification to be sufficiently complete and detailed such that a reasonable person could understand the basis for the licensee's determination in the paragraph (c)(2) notification. The term “sufficient information” is comparable to the meaning given to that term in paragraph (c)(1), and requires, at a minimum, a summary description of the basis for the licensee's determination. In addition, “sufficient information” includes, but is not limited to, a description of the specific procedures and analytical methods used or relied upon to develop or support the licensee's determination. The paragraph (c)(2) notification must be in writing, and the records on which it is based should be retained by the licensee to support possible NRC inspection. Licensees should use the same process for submitting ITAAC post-closure notifications as would be used to submit initial ITAAC closure notifications. The NRC is issuing guidance on implementation of the requirements in proposed paragraph (c)(2), including the level of detail necessary to comply with the requirements of paragraph (c)(2), as discussed in Section V, “Availability of Regulatory Guidance,” of this document.
The NRC has added a new paragraph (c)(4) which requires the licensee to notify the NRC that all ITAAC are complete (All ITAAC Complete Notification). When the licensee submits the all ITAAC complete notification, the NRC expects that all activities requiring ITAAC post-closure letters have been completed, that the associated ITAAC determination bases have been updated, and that all required notifications under paragraph (c)(2) have been made.
The NRC has made editorial changes in § 52.99(d)(1) to replace the words “have been met” with, “are met” and in § 52.99(d)(2) to replace the phrase “ITAAC has been met” with the phrase “prescribed acceptance criteria are met.” Paragraph (d) states the options that a licensee will have in the event that it is determined that any of the acceptance criteria in the ITAAC are not met. If an activity is subject to an ITAAC derived from a referenced standard design certification and the licensee has not demonstrated that the ITAAC are met, then the licensee may take corrective actions to successfully complete that ITAAC or request an exemption from the standard design certification ITAAC, as applicable. A request for an exemption must also be accompanied by an application for a license amendment under 10 CFR 52.98(f). The NRC will consider and take action on the request for exemption and the license amendment application together as an integrated NRC action.
Also, if an activity that is subject to an ITAAC not derived from a referenced standard design certification and the licensee has not demonstrated that the prescribed acceptance criteria are met, the licensee may take corrective actions to successfully complete that ITAAC or request a license amendment under 10 CFR 52.98(f).
The final rule is substantially the same as the proposed rule with one change to § 52.99(e)(2) to clarify NRC notices to the public. The one language change made to the section, “NRC inspection, publication of notices, and availability of licensee notifications,” is to replace the language “The NRC shall make publicly available the licensee notifications under paragraphs (c)(1) through (4) of this section no later than the date of publication of the notice of intended operations required by 10 CFR 52.103(a)” with:
“The NRC shall, no later than the date of publication of the notice of intended operation required by 10 CFR 52.103(a), make publicly available those licensee notifications under paragraph (c) of this section that have been submitted to the NRC at least seven (7) days before that notice.” The NRC will make public all paragraph (c) ITAAC notifications that were submitted to the NRC at least seven days before the date of publication of the notice of intended operation required by 10 CFR 52.103(a)
Concurrent with this final rule, the NRC is issuing Revision 1 to RG 1.215, “Guidance for ITAAC Closure Under 10 CFR Part 52.” Revision 1 of RG 1.215 was issued in draft form for public comment with a temporary identification as Draft Regulatory Guide, DG-1250 (76 FR 27924, May 13, 2011). This guidance series was developed to describe, and make available to the public, information such as methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the staff uses in evaluating specific problems or postulated accidents, and data that the staff needs in its review of applications for permits and licenses.
In Revision 1 of RG 1.215, the NRC is endorsing Revision 4 to the existing industry ITAAC closure guidance in NEI 08-01, submitted to the NRC for endorsement on July 16, 2010 (Package ADAMS Accession No. ML102010076). The revised guidance is intended to provide an acceptable method by which licensees can implement the new requirements in this final rulemaking.
The proposed final rule requirements for ITAAC maintenance and the draft RG 1.215 were presented to the Advisory Committee on Reactor Safeguards (ACRS) on December 1, 2011 (ADAMS Accession No. ML11342A075). The ACRS conclusion and recommendations were that: (1) The proposed ITAAC rule, “Requirements for Maintenance of Inspections, Tests, Analyses, and Acceptance Criteria,” meets the goal of ensuring maintenance of ITAAC validity and should be approved. (2) The approach in RG 1.215, Revision 1, for closing and maintaining ITAAC should be revised to include an assessment that ensures a change does not introduce unintended consequences. The assessment should also include an evaluation that confirms the original inspections, tests, and analyses and their acceptance criteria are still valid and assures the functionality originally intended. (3) After revision, RG 1.215, Revision 1, should be issued. The NRC agrees to clarify RG 1.215 and the following sentence is included in Section B, where the requirements of NEI 08-01, section 8 are discussed: “The design and configuration control program should include an assessment and evaluation that confirms that the ITAAC potentially affected by a proposed change are still valid and assures the functionality originally intended.”
The NRC is making the documents identified in the following table available to interested persons through one or more of the following methods as indicated. To access documents related to this action, see the
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.
Under the “Policy Statement on Adequacy and Compatibility of Agreement States Programs,” approved by the Commission on June 20, 1997, and published in the
The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. The requirements in this rulemaking address procedural and information collection and reporting requirements necessary to support the NRC's regulatory activities on combined licenses under 10 CFR part 52, and to facilitate the NRC's conduct of hearings on ITAAC which may be held under Section 189 of the AEA. These requirements do not establish standards or substantive requirements with which combined license holders must comply. Thus, this rulemaking does not constitute establishment of a standard containing generally applicable requirements falling within the purview of the National Technology Transfer and Advancement Act and the implementing guidance issued by the Office of Management and Budget (OMB).
The NRC has determined that these amendments fall within the types of actions described as categorical exclusions under 10 CFR 51.22(c)(2) and (c)(3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this regulation.
This final rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The burden to the public for these information collections is estimated to average 22 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for reducing the burden, to the Information Services Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission.
The regulatory analysis is in ADAMS under Accession No. ML120100062.
The regulatory analysis may also be viewed and downloaded electronically via the Federal rulemaking Web site at
The regulatory analysis examines the benefits and costs of the final rule requirements. The key findings of the analysis are as follows:
•
•
•
•
•
In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
The NRC has determined that neither the backfit rule, 10 CFR 50.109, nor any of the finality provisions in 10 CFR part 52, apply to this final rule. Therefore, a backfit analysis is not required because the proposed ITAAC maintenance rule does not contain any provisions that would impose backfitting as defined in the backfit rule, nor does it contain provisions that are inconsistent with the finality provisions applicable to applicants for or holders of combined licenses in 10 CFR part 52.
The final rule applies only to holders of combined licenses. The backfitting provisions in 10 CFR 50.109 and the finality provisions in Subpart C of 10 CFR part 52 protect holders of combined licenses (with the exception discussed further in this document). Subpart C of 10 CFR part 52 contains issue finality provisions which protect combined license applicants, but that protection extends only to issue resolution of matters resolved in referenced early site permits, standard design certifications, standard design approvals, or manufactured reactors. This rule does not alter issue resolution associated with referenced early site permits, standard design certifications, standard design approvals, or manufactured reactors. Instead, this final rule addresses requirements concerning the collection and reporting of information to the NRC to support the Commission's finding that ITAAC are met, and the conduct of hearings addressing whether prescribed inspections, tests, and analyses have been or will be performed and whether the prescribed acceptance criteria have been or will be met. Neither the backfit rule nor the issue finality provisions of 10 CFR part 52 apply to information collection and reporting requirements.
To the extent that the rule revises these information collection and reporting requirements for future combined licenses, these requirements do not constitute backfitting or are otherwise inconsistent with the finality provisions in 10 CFR part 52, for the additional reason that the ITAAC Maintenance Rule's requirements are prospective in nature and effect. Neither the backfit rule nor the issue finality provisions in 10 CFR part 52 were intended to apply to every NRC action, which substantially changes the obligations of future licensees under 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis or other evaluation for this final rule.
Under the Congressional Review Act of 1996, the NRC has determined that these actions are not major rules and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalties, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 52.
Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 2201, 2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C. 5841); 5 U.S.C. 552; Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note).
Section 2.101 also issued under Atomic Energy Act secs. 53, 62, 63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f)); National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy Reorganization Act sec. 301 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200-2.206 also issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, as amended by section 3100(s), Pub. L. 104-134 (28 U.S.C. 2461 note). Subpart C also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued under 5 U.S.C. 557. Section 2.340 also issued under Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act sec. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239).
(j)
(1) If the Commission or the appropriate director is otherwise able to make the finding under 10 CFR 52.103(g) that the prescribed acceptance criteria are met for those acceptance criteria not within the scope of the initial decision of the presiding officer;
(2) If the presiding officer's initial decision—with respect to contentions that the prescribed acceptance criteria have not been met—finds that those acceptance criteria have been met, and the Commission or the appropriate director thereafter is able to make the finding that those acceptance criteria are met;
(3) If the presiding officer's initial decision—with respect to contentions
(4) Notwithstanding the pendency of a petition for reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 2.341, or a motion for stay under 10 CFR 2.342, or the filing of a petition under 10 CFR 2.206.
Atomic Energy Act secs. 103, 104, 147, 149, 161, 181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2201, 2167, 2169, 2232, 2233, 2235, 2236, 2239, 2282); Energy Reorganization Act secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Government Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).
(a)
(b)
(c)
(2)
(3)
(4)
(d)
A request for an exemption must also be accompanied by a request for a license amendment under 10 CFR 52.98(f).
(2) In the event that an activity is subject to an ITAAC not derived from a referenced standard design certification and the licensee has not demonstrated that the prescribed acceptance criteria are met, the licensee may take corrective actions to successfully complete that ITAAC or request a license amendment under 10 CFR 52.98(f).
(e)
(1) At appropriate intervals until the last date for submission of requests for hearing under 10 CFR 52.103(a), the NRC shall publish notices in the
(2) The NRC shall make publicly available the licensee notifications under paragraph (c) of this section. The NRC shall, no later than the date of publication of the notice of intended operation required by 10 CFR 52.103(a), make publicly available those licensee notifications under paragraph (c) of this section that have been submitted to the NRC at least seven (7) days before that notice.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Honeywell International Inc. models TFE731-4, -4R, -5, -5R, -5AR, and -5BR series turbofan engines. This AD was prompted by a report of a rim/web separation of a first stage low-pressure
This AD is effective October 2, 2012.
For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034-2802; Web site:
You may examine the AD docket on the Internet at
Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210: email:
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 published in the
We gave the public the opportunity to participate in developing this AD. The following presents the one comment received on the proposal and the FAA's response to the comment.
One commenter requested we change a term in paragraph (h) of the proposed AD. The commenter requested that “tie rod” be changed to “tie shaft.” The commenter said that making this change would allow a level of disassembly to access the inlet total temperature harness and other hardware without affecting the low-pressure turbine (LPT) module.
We do not agree. Mandating access to the LPT module in the AD and suspect disks when the tie rod is unstretched is consistent in achieving AD compliance sooner for the Falcon 20 and CASA 101 airplanes. LPT disk separations in these airplanes have been determined to be higher risk than for engines in other applications. We did not change the AD.
We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 9868, February 21, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 9868, February 21, 2012).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We estimate that this AD will affect 1,550 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 work-hour per engine to perform the actions at next access and 165 work-hours per unscheduled engine disassembly, and that the average labor rate is $85 per work-hour. Replacement parts will cost about $175,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $35,195,488 per year.
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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) 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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 2, 2012.
None.
This AD applies to Honeywell International Inc.:
(1) Model TFE731-5 series turbofan engines, with a first stage low-pressure turbine (LPT1) rotor assembly, part number (P/N) 3075184-2, 3075184-3, or 3075184-4, installed, and
(2) Models TFE731-5AR and -5BR series turbofan engines, with a first stage LPT1 rotor assembly, P/N 3075447-1, 3075447-2, 3075447-4, 3075713-1, 3075713-2, 3075713-3, or 3074748-5, installed, and
(3) Models TFE731-4, -4R, -5AR, -5BR, and -5R series turbofan engines, with an LPT1 rotor assembly, P/N 3074748-4, 3074748-5, 3075447-1, 3075447-2, 3075447-4, 3075713-1, 3075713-2, or 3075713-3, installed.
This AD was prompted by a report of a rim/web separation of an LPT1 rotor assembly. We are issuing this AD to prevent uncontained disk separation, engine failure, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Remove the LPT1 rotor assembly at the next access to the LPT1 rotor assembly or at the next major periodic inspection, not to exceed 2,600 hours-in-service since last major periodic inspection, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) Remove the LPT1 rotor assembly at the next core zone inspection, not to exceed 5,100 hours-in-service since last core zone inspection, or at the next time the LPT1 rotor disc is removed for cause, or 8 years after the effective date of this AD, whichever occurs first.
(2) Install an LPT1 rotor assembly that is eligible for installation.
(1) For the purpose of this AD, “next access” is when the low-pressure tie rod is unstretched.
(2) For the purpose of this AD, an LPT1 rotor assembly “eligible for installation” is an LPT1 rotor assembly not having a P/N listed in this AD.
After the effective date of this AD, do not install any LPT1 rotor assembly listed by P/N in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, into any engine.
The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures in 14 CFR 39.19 to request an AMOC.
(1) For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210: email:
(2) Honeywell International Inc. Service Bulletin (SB) No. TFE731-72-3768; SB No. TFE731-72-3769; and SB No. TFE731-72-3770, pertain to the subject of this AD.
(3) For service information identified in this AD, contact Honeywell International Inc., 111 S. 34th Street, Phoenix, AZ 85034-2802; Web site:
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 28, 2012. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective August 28, 2012. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 28, 2012.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore— (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPSs; and § 97.35 COPTER SIAPs, Identified as follows:
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (Commission) is adopting regulations to further implement new statutory provisions enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) regarding registration of intermediaries. Specifically, the Commission is adopting certain conforming amendments to the Commission's regulations regarding the registration of intermediaries, consistent with other Commission rulemakings issued pursuant to the Dodd-Frank Act, and other non-substantive, technical amendments to its regulations.
Effective October 29, 2012.
Andrew Chapin, Associate Director, Division of Swap Dealer and Intermediary Oversight, (202) 418-5465,
On July 21, 2010, President Obama signed the Dodd-Frank Act.
As discussed below, the regulations the Commission is adopting today concern conforming and technical amendments to part 3 governing the registration of intermediaries. These final regulations are based in large part on the Commission's proposed regulations regarding part 3 (Proposal).
In response to the Proposal, the Commission received four comments from the Futures Industry Association (FIA), the National Futures Association (NFA), and two individuals, Chris Barnard and Bill Nolan. In addition, the Commission also received comments relevant to the Proposal in a global comment letter submitted by a U.S. investor and a petition for exemption submitted pursuant to Section 4(c) of the CEA
Section 3.1 proposed alterations to the scope of persons who, by reason of their ownership of securities of a registrant, must be listed as a principal. The Commission proposed to narrow the current category of persons in § 3.1(a)(2)(i) to only those individuals who are the owners or are entitled to vote or have the power to sell or direct the sale of 10 percent or more of the outstanding shares of any class of equity securities, other than non-voting securities. The Commission intended to narrow the scope of the provision because the existing provision was over-inclusive, in that it captured individuals without the ability to influence a company's actions, such as owners of 10% of a class of preferred stock. However, upon further reflection, the Commission is concerned that the Proposal might, in other ways, be under-inclusive, in that it would fail to capture an owner who might indirectly have the power—such as through a membership agreement—to dictate upfront the entity's activities that are subject to regulation by the Commission. Consequently, in order to strike the right balance between the over-inclusive existing provision and the under-inclusive proposed language, the Commission is modifying § 3.1(a)(2)(i) to include individuals who have the power to exercise a controlling influence over the entity's activities that are subject to regulation by the Commission.
Section 3.10 generally sets forth the registration requirements for various Commission registrants. Section 3.11 generally sets forth the registration requirements for floor brokers and floor traders. Section 3.12 generally sets forth the registration requirements for natural persons associated with a Commission registrant in certain capacities, referred to as associated persons (APs).
With respect to APs, the Commission proposed to amend § 3.10 to add a new paragraph (c)(5) to clarify that a person employed by either an SD or a MSP and acting as its AP is not required to separately register as an SD or MSP, respectively, solely arising out of the person's activities as an AP. The Commission sought public comment as to whether this exemption is necessary to clarify the registration responsibilities of employees, in light of the current absence of a registration requirement as an AP of an SD or an MSP, and in light of the definition requiring persons who engage in certain swap activities to register as an SD or an MSP.
With respect to intermediaries, current § 3.10(c)(2) and (3) provides exemptions from registration as a futures commission merchant (FCM) for foreign brokers and other foreign intermediaries conducting activities in commodity interest transactions on designated contract markets (DCMs) solely on behalf of customers located outside the U.S. The Commission proposed to amend this section to expand these registration exemptions to foreign brokers and foreign intermediaries engaged in commodity interest transactions solely on behalf of non-U.S. customers executed on a SEF and cleared on a designated clearing organization through the customer omnibus account maintained with a registered FCM. FIA supported the Commission's proposal to align registration exemptions for foreign intermediaries across DCMs and SEFs. The Commission also sought comment as to whether it should expand such exemption to swap transactions executed bilaterally, and FIA supported this suggestion as well. Finally, the Commission sought comment as to whether any expansion should distinguish between bilateral swap transactions that occur within the U.S. and those that occur abroad. The Commission did not receive any comments regarding such a distinction. Therefore, the Commission is amending § 3.10(c)(2) and (3) to extend the registration exemption to commodity interest transactions executed bilaterally, on or subject to the rules of a DCM, or on or subject to the rules of a SEF, that are submitted for clearing on an omnibus basis through a registered FCM.
As proposed, § 3.11 pertaining to registration of floor brokers and floor traders contained a series of technical changes, such as consolidating an exemption found in § 3.4 and removing references to DTEFs. Subsequently, the Commission has promulgated the further definition of the term “swap dealer”
Given that legal entities, in addition to natural persons, may seek to avail themselves of the exclusion set forth above, the Commission therefore is adding a reference to Form 7-R in § 3.11. Form 7-R, as the application for registration as an intermediary, is the appropriate form for NFA to process an entity's application for registration as a floor trader engaged in swaps activities. Additionally, references to SEFs are being added throughout § 3.11 as one of the two categories of facilities for which floor traders in swaps will be granted trading privileges. Although these additions were omitted in the Proposal, the Commission believes that insertion of the appropriate reference to the type of registration form, and the type of facility, that would allow the NFA to properly process applications for registration of floor traders engaged in swaps activities are conforming changes to the registration rule that are necessary to implement the SD definition.
Consequently, the Commission is adopting additional technical modifications in § 3.21 to address the processing of fingerprints for principals of a floor trader that is a non-natural person, as well as in § 3.33 to reflect the use of Form 7-W for a request for withdrawal from a floor trader that is a non-natural person. The Commission is also adopting other technical modifications in §§ 3.30 and 3.40 to reflect the registration of legal entities as floor traders,
The Commission proposed to amend § 3.12(h)(1) to provide that a person is not required to register as an AP in any capacity if such person is registered in one of the other enumerated categories, including an SD or MSP. FIA agreed with the Commission that it is highly improbable that an individual, rather than an entity, would register as an SD and MSP, but supported the Commission's proposal in light of the regulatory certainty that it provides. Accordingly, the Commission is adopting § 3.12(h)(1) as proposed.
Section 3.31 sets forth procedural requirements for a registrant to update and/or correct information previously provided to the Commission and the NFA. The NFA is a registered futures association (RFA) to which the Commission has delegated certain registration functions.
Among other changes set forth in the Proposal, the Commission proposed: (1) To adopt § 3.31(a)(5) to require re-registration in the event of a change in name or form of organization and a change in principal, while preserving the existing safe harbor in § 3.31(a)(3) in the event that there is no change in principal and the registrant will be liable for its predecessor organization. The Commission specifically requested comment on whether the additional transparency under the new provisions of § 3.31 is beneficial and necessary to fulfill the Commission's mandate to protect customers, and whether the existing safe harbors from re-registration should be maintained. In response to the Commission's request, NFA and FIA opposed the proposed re-registration requirements as unnecessary, while Bill Nolan supported the proposed re-registration requirements as necessary to ensure that the existing process is not abused by registrants to the detriment of customers.
In particular, the NFA challenged the proposed amendments to § 3.31 on the following grounds: (1) It will be more difficult for members of the public to uncover a “new” firm's true disciplinary information; (2) the change in the legal name or form of a business organization and the addition of a principal does not necessarily trigger a regulatory need for re-registration; and (3) the proposed changes do not adequately address the timing of events sufficient to require re-registration. FIA similarly opposed the proposed changes on the grounds that re-registration should not be required for concurrent changes to the name or form of an organization, or the addition of a principal because re-registration is not required separately for each of these occurrences. FIA also stated that, upon implementation of the Dodd-Frank Act, the prospective mergers of affiliated companies will be negatively impacted by the proposed requirements.
After carefully considering the foregoing comments, the Commission has determined not to adopt the amendment in § 3.31(a)(3) and (5) as proposed.
In its comment letter, the NFA also suggested a few technical edits to the language in proposed § 3.31 to clarify that: (1) It is not the electronic update reporting a change on a Form 7-R that creates any deficiency or inaccuracy; and (2) an applicant or registrant no longer lists its principals who are individuals on its application for registration, as only holding companies are listed. The Commission believes that these comments improve upon the proposed language and is adopting these suggested changes in the final regulation. Finally, as previously mentioned, the Commission is also adopting additional technical modifications in § 3.31 to reflect the use of Form 7-R for floor traders that are non-natural persons.
In the Proposal, the Commission noted that it would be necessary to harmonize any distinctions between the Proposal and other rulemakings as they become final. On January 19, 2012, the Commission published in the
The Regulatory Flexibility Act (Reg Flex Act) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
As set forth in the Proposal,
Since there could be some small entities that register as IBs, commodity trading advisors, or floor traders, the Commission considered whether this rulemaking would have a significant economic impact on these registrants. The final rules would clarify the mechanics of registration by updating cross-references, consolidating exemptions, and deleting obsolete forms. The Commission does not expect registrants to incur additional expenses as a result of these clarifications. Consequently, the Commission finds that there is no significant economic impact on IBs or commodity trading advisors resulting from this rulemaking. The final rules also provide clarity to floor traders regarding existing registration requirements (for example, the revisions to § 3.11 clarify that an entity that wishes to register as a floor trader shall do so by filing Form 7-R), rather than imposing any new registration requirement. Consequently, the Commission finds that there is no significant economic impact on floor traders resulting from this rulemaking.
Accordingly, for the reasons stated in the Proposal and the additional rationale provided above, the Commission believes that the conforming and other technical amendments in this rulemaking will not have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the regulations being published today by this
Under the Paperwork Reduction Act of 1995 (PRA), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
The currently approved rule collection covering the regulatory filings discussed in this final rule (3038-0023, which covers Forms 3-R, 7-R, 8-R and 8-T) has a burden of 78,109 respondents and 7,030 annual hours.
Therefore, the Commission has determined to revise the burden for this information collection as follows. The burden associated with the use of Form 7-R for the registration of entities as floor traders is estimated to be 60 hours, assuming 60 respondents,
The respondent burden for this collection is estimated to average 1 hour per response for the Form 7-R; 0.8 hours per response for the Form 8-R; and 0.2 hours per response for the Form 8-T.
Section 15(a) of the CEA
The regulations being adopted today conform, modernize, and make technical amendments to part 3 governing the regulation of intermediaries. Their purpose is to
The Commission received few specific comments concerning the Proposal's consideration of costs and benefits beyond general comments that the costs associated with particular rule amendments would outweigh the benefits. Those it did receive are addressed in the discussion below. None of the comments received provided a basis to quantify estimated costs or benefits.
The Commission's baseline for consideration of the costs and benefits of this rulemaking are the costs and benefits that the public and market participants would experience in the absence of this proposed regulatory action. In other words, the proposed baseline is an alternative situation in which the Commission takes no action to conform, modernize, and make technical adjustments to its existing rules as described above in light of the Dodd-Frank Act amendments to the CEA.
As set forth in the Proposal, the regulations the Commission is adopting concern conforming and technical amendments to part 3 governing the registration of intermediaries. Although the conforming amendments do not involve substantive changes to existing regulations, and hence no significant changes to the costs or benefits of the same, the final rules do benefit market participants by adding specificity to the mechanics of registration, which also benefits customers in the form of increased transparency. For example, the conforming amendments will add references to SEFs in § 3.42 to clarify that a temporary license would immediately terminate upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a SEF.
Current § 3.1(a) sets forth the definition of “principal,” and § 3.1(a)(3) carves out from that definition certain persons that have made capital contributions in the form of subordinated debt to a registrant, including unaffiliated banks operating in the U.S. and U.S. branches of foreign banks. The Commission is adopting amendments to expand the carve-out to accommodate the likelihood that persons with capital contributions from foreign banks might register as SDs and thus be included within the definition of principal. This expanded definitional carve-out makes the foreign bank registration process consistent with that for domestic banks. This consistency promotes market efficiency by avoiding additional costs that foreign banks would otherwise incur to comply with listing and qualification requirements.
No comments were received with respect to any cost or benefit implications of this definitional amendment, notwithstanding that the Commission specifically sought comments concerning it.
Section 3.10 generally sets forth the registration requirements for various Commission registrants. The Commission has decided to implement the expansion of the existing exemption in § 3.10(c)(2) and (3), which will introduce parity between registration obligations of foreign brokers and foreign intermediaries conducting commodity interest transactions bilaterally, on DCMs, and on SEFs. The Commission expects such expansion of the exemption to reduce compliance costs without affecting customer protection. The Commission has also decided to implement the proposed new paragraph § 3.10(c)(5), which will provide regulatory certainty that the activities engaged in solely as an associated person of an SD would not require such person to register as an SD. The Commission believes that this amendment is beneficial by reducing the costs to market participants of approaching the Commission for clarifications.
Section 3.11 is being amended to reflect the further definition of the term “swap dealer” which, among, other things, excludes certain swaps entered into by registered floor traders from the SD determination. Traditionally, natural persons have registered as floor traders. However, following promulgation of rules further defining the term “swap dealer,” the Commission foresees that firms will register as floor traders, making the previous rule requiring fingerprinting for all floor traders impractical without clarification. The new rules clarify that principals of a firm registering as a floor trader, and each individual responsible for entry of orders from that floor trader's own account, will be subject to the fingerprinting requirement. The Commission believes that this amendment is beneficial by obviating the need for potentially impacted market participants to incur costs to approach the Commission for clarifications. The other amendments extending the scope of § 3.11 to SEFs, while mainly technical in nature, will improve operational efficiency by allowing NFA to properly process applications for registration for floor traders engaged in swap activities.
Section 3.12 generally sets forth the registration requirement for APs. The Commission is adopting an amendment to § 3.12(h)(1)(i) to provide that a person is not required to register as an AP in any capacity if he or she is registered in one of the other enumerated categories, including an SD or MSP. FIA agreed with the Commission that it is highly improbable that an individual, rather than an entity, would register as an SD and MSP, but supported the Commission's proposal in light of the clarity it provides. As the change clarifies and extends the exemptions to activities of an SD or MSP, it will not create additional costs, and will benefit the markets by promoting efficiency by eliminating the need for multiple registrations by a single individual.
The rules amendments adopted today delete the term DTEF from §§ 3.2(c), 3.2(c)(2), 3.10(a)(3)(i)(A), 3.10(c)(2)(i),
As this change is mandated by statute, it will not create costs and benefits relative to the baseline. No comments were received on the costs and benefits of this aspect of the Proposal.
Section 3.1(a)(2) defines a principal to include persons who exceed a threshold for equity ownership. As a technical matter, the Commission is adopting amendments to harmonize the references to outstanding classes of securities in § 3.1(a)(2)(i) and (ii) by referring throughout to “outstanding shares of any class of equity securities, other than non-voting securities.” The primary benefit from these amended regulations is that they provide specificity for calculations involving authorized but unissued securities, or debt securities.
Also, the Commission is amending its regulations to move the concept of indirect owners found in the definition of beneficial ownership in § 3.1(d) to § 3.1(a)(4) to serve as a backstop to the requirement to list indirect owners in § 3.1(a)(2). The Commission received no comments with respect to the costs and benefits of this amendment. The Commission does not believe that this amendment will have a material impact on costs and benefits relative to the baseline.
The rules incorporate revised language further defining the definition of principal to include any person who has the power to exercise a controlling influence over an entity's activities that are subject to regulation by the Commission. As described earlier, the proposed amendments were designed to reduce the scope of persons who might potentially be covered by the definition. Under certain circumstances, the revised § 3.1(a)(2)(i) language referencing those with power to exercise a controlling influence could potentially increase the scope of persons covered by the definition. But, given that this amendment is similar to an existing requirement in Form BD covering broker-dealers, the Commission believes that any additional costs will be limited to the subset of firms that are not already registered with the SEC and within this subset, those firms which have individuals who are not subject to the existing equity ownership threshold, or the existing director or officer function threshold, but nonetheless who possess the power to exercise control. Given the nature of the control structure being addressed, while it is not feasible for the Commission to estimate the number of firms likely to be impacted by this rule, it believes that costs of complying with the rule are likely to be minimal because information on which owners of an entity exercise control is generally known to officers of that entity. Furthermore, the minimal costs are justified by the benefits to the market and market participants from ensuring that individuals cannot circumvent the fitness qualifications presently in place for principals by structuring their holdings into non-voting securities, and then exercising control through a separate agreement.
Current § 3.31 sets forth procedural requirements for a registrant to update and/or correct information previously provided to the Commission and the NFA. Section 3.33 addresses the procedural requirements for the withdrawal of registration. The Commission is adopting amendments to § 3.31(a) to reference the requirement in amended § 3.33 to withdraw registration upon certain events of dissolution, and in § 3.31(b), (c) and (d) to make technical corrections.
The adopted amendments in § 3.31 are technical and are not expected to involve costs, but will provide greater clarity by correcting references to outdated forms and by deleting duplicate instructions. The amendments to § 3.33 clarify the requirement to withdraw under certain circumstances involving dissolution of a company, and would improve the predictability of withdrawal requirements to the benefit of market participants. There were no comments on the costs and benefits of the proposed withdrawal requirements under § 3.33.
The Commission is adopting amendments to the regulations addressing the forms used during the registration process. These changes are technical in nature—for example, the changes would delete references to an obsolete form and obsolete cross-references. The Commission does not believe that increased costs to market participants or the public will result from these changes. That said, the Commission believes they do provide a benefit by addressing gaps in the current information collected through the various forms, particularly those forms cross-referencing other data.
There were no comments on the costs and benefits of the proposed technical amendments to the forms.
•
The Commission believes that the amendments to § 3.33 will improve the protection of market participants and the public by requiring withdrawal of registration in the event of dissolution of a registrant, thus improving the protection of the public.
•
The amendments to § 3.1 clarify the calculations used to determine who meets the definition of principal, reducing uncertainty surrounding compliance by intermediaries. The amendments to the regulations addressing the forms used during the registration process will update the description of information collection and make it more accurate, which improves the overall efficiency of our markets.
•
•
•
Administrative practice and procedure, Brokers, Commodity futures, Major swap participants, Reporting and recordkeeping requirements, Swap dealers.
For the reasons stated in the preamble, the Commission amends 17 CFR part 3 as follows:
5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, 23.
(a)
(2)(i) Any individual who directly or indirectly, through agreement, holding company, nominee, trust or otherwise, is either the owner of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities, is entitled to vote or has the power to sell or direct the sale of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities, is entitled to receive ten percent or more of the profits of the entity, or has the power to exercise a controlling influence over the entity's activities that are subject to regulation by the Commission; or
(ii) Any person other than an individual that is the direct owner of ten percent or more of the outstanding shares of any class of equity securities, other than non-voting securities; or
(3) Any person that has contributed ten percent or more of the capital of the entity, provided, however, that if such capital contribution consists of subordinated debt contributed by either:
(i) An unaffiliated bank insured by the Federal Deposit Insurance Corporation,
(ii) An unaffiliated “foreign bank,” as defined in 12 CFR 211.21(n) that currently operates an “office of a foreign bank,” as defined in 12 CFR 211.21(t), which is licensed under 12 CFR 211.24(a),
(iii) Such unaffiliated office of a foreign bank that is licensed, or
(iv) An insurance company subject to regulation by any State, such bank, foreign bank, office of a foreign bank, or insurance company will not be deemed to be a principal for purposes of this section, provided such debt is not guaranteed by another party not listed as a principal.
(4) Any individual who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement, or device with the purpose or effect of divesting such person of direct or indirect ownership of an equity security of the entity, other than a non-voting security, or preventing the vesting of such ownership, or of avoiding making a contribution of ten percent or more of the capital of the entity, as part of a plan or scheme to evade being deemed a principal of the entity, shall be deemed to be a principal of the entity.
(c) The National Futures Association shall notify the registrant, or the sponsor in the case of an applicant for registration as an associated person, and each designated contract market and swap execution facility that has granted the applicant trading privileges in the case of an applicant for registration as a floor broker or floor trader, if registration has been granted under the Act.
(2) If an applicant for registration as a floor broker or floor trader receives a temporary license in accordance with § 3.40, the National Futures Association shall notify the designated contract market or swap execution facility that has granted the applicant trading privileges that only a temporary license has been granted.
(a) Except as may be otherwise provided in the Act or in any rule, regulation, or order of the Commission, each futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, floor broker, floor trader of any commodity for future delivery, commodity trading advisor, commodity pool operator, introducing broker, leverage transaction merchant, and associated person (other than an associated person of a swap dealer or major swap participant) must register as such under the Act. Except as may be otherwise provided in the Act or in any rule, regulation, or order of the Commission, registration in one capacity under the Act shall not include registration in any other capacity.
(a) * * *
(3) * * *
(i) * * *
(A) The broker or dealer limits its solicitation of orders, acceptance of orders, or execution of orders, or placing of orders on behalf of others involving any contracts of sale of any commodity for future delivery, on or subject to the rules of any contract market, to security futures products as defined in section 1a(44) of the Act;
(c) * * *
(2)(i) A foreign broker, as defined in § 1.3(xx) of this chapter, is not required to register as a futures commission merchant if it submits any commodity interest transactions executed bilaterally, on or subject to the rules of a designated contract market, or on or subject to the rules of a swap execution facility, for clearing on an omnibus basis through a futures commission merchant registered in accordance with section 4d of the Act.
(3)(i) A person located outside the United States, its territories or possessions engaged in the activity of: An introducing broker, as defined in § 1.3(mm) of this chapter; a commodity trading advisor, as defined in § 1.3(bb) of this chapter; or a commodity pool operator, as defined in § 1.3(nn) of this chapter, in connection with any commodity interest transaction executed bilaterally or made on or subject to the rules of any designated contract market or swap execution facility only on behalf of persons located outside the United States, its territories or possessions, is not required to register in such capacity provided that any such commodity interest transaction is submitted for clearing through a futures commission merchant registered in accordance with section 4d of the Act.
(4) * * *
(ii) Such a person introduces, on a fully-disclosed basis in accordance with § 1.57 of this chapter, any institutional customer, as defined in § 1.3(g) of this chapter, to a registered futures commission merchant for the purpose of trading on a designated contract market;
(iii) Such person's affiliated futures commission merchant has filed with the National Futures Association (Attn: Vice President, Compliance) an acknowledgement that the affiliated futures commission merchant will be jointly and severally liable for any violations of the Act or the Commission's regulations committed by such person in connection with those introducing activities, whether or not
(iv) Such person does not solicit any person located in the United States, its territories or possessions for trading on a designated contract market, nor does such person handle the customer funds of any person located in the United States, its territories or possessions for the purpose of trading on any designated contract market.
(5) In determining whether a person is a swap dealer, the activities of a registered swap dealer with respect to which such person is an associated person shall not be considered.
(a)
(2) An applicant for registration as a floor broker or floor trader will not be registered or issued a temporary license as a floor broker or floor trader unless the applicant has been granted trading privileges by a board of trade designated as a contract market or registered as a swap execution facility by the Commission.
(3) When the Commission or the National Futures Association determines that an applicant for registration as a floor broker or floor trader is not disqualified from such registration or temporary license, the National Futures Association will notify the applicant and any contract market or swap execution facility that has granted the applicant trading privileges that the applicant's registration or temporary license as a floor broker or floor trader is granted.
(b)
(c)
(b)
(c)
(g)
(h)
(i) Registered under the Act as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, floor broker, or as an introducing broker;
(ii) Engaged in the solicitation of funds, securities, or property for a participation in a commodity pool, or the supervision of any person or persons so engaged, pursuant to registration
The revisions and addition read as follows:
(a) * * *
(1) A legible, accurate and complete photocopy of a fingerprint card that has been submitted to the Federal Bureau of Investigation for identification and appropriate processing and of each report, record, and notation made available by the Federal Bureau of Investigation with respect to that fingerprint card if such identification and processing has been completed satisfactorily by the Federal Bureau of Investigation not more than ninety days prior to the filing with the National Futures Association of the photocopy;
(2) A statement that such person's application for initial registration in any capacity was granted within the preceding ninety days, provided that the provisions of this paragraph (a)(2) shall not be applicable to any person who, by Commission rule, regulation, or order, was not required to file a fingerprint card in connection with such application for initial registration; or
(3) A statement that such person has a current Form 8-R on file with the Commission or the National Futures Association.
(b) * * *
(1) With respect to the fingerprints of an associated person: An officer, if the sponsor is a corporation; a general partner, if a partnership; or the sole proprietor, if a sole proprietorship;
(2) With respect to fingerprints of a floor broker or individual floor trader: The applicant for registration; and with respect to fingerprints of each individual who is responsible for entry of orders from the account of a floor trader that is a non-natural person, the applicant for registration, or
(3) With respect to the fingerprints of a principal: An officer, if the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant with which the principal will be affiliated is a corporation; a general partner, if a partnership; or the sole proprietor, if a sole proprietorship.
(c)
(4) * * *
(i) The name of the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, leverage transaction merchant, or applicant for registration in any of these capacities of which the person is an outside director;
(iii) The internal controls used to ensure that the outside director for whom exemption under this paragraph (c) is sought does not have access to the keeping, handling or processing of the items described in paragraphs (c)(2)(i) and (ii) of this section; and
(b) That the person, or any individual who, based upon his or her relationship with that person is required to file a Form 8-R in accordance with the requirements of this part, as applicable, must, within such period of time as the Commission or the National Futures Association may specify, complete and file with the Commission or the National Futures Association a current Form 7-R, or if appropriate, a Form 8-R, in accordance with the instructions thereto.
(a) The address of each registrant, applicant for registration, and principal, as submitted on the application for registration (Form 7-R or Form 8-R) or as submitted on the biographical supplement (Form 8-R) shall be deemed to be the address for delivery to the registrant, applicant or principal for any communications from the Commission or the National Futures Association, including any summons, complaint, reparation claim, order, subpoena, special call, request for information, notice, and other written documents or correspondence, unless the registrant, applicant or principal specifies another address for this purpose: Provided that the Commission or the National Futures Association may address any correspondence relating to a biographical supplement submitted for or on behalf of a principal to the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant with which the principal is affiliated and may address any correspondence relating to an associated person to the futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant with which the associated person or the applicant for registration is or will be associated as an associated person.
(b) Each registrant, while registered and for two years after termination of registration, and each principal, while affiliated and for two years after termination of affiliation, must notify in writing the National Futures Association of any change of the address on the application for registration, biographical supplement, or other address filed with the National Futures Association for the purpose of receiving communications from the Commission or the National Futures Association. Failure to file a required response to any communication sent to the latest such address filed with the National Futures Association that is caused by a failure to notify in writing the National Futures Association of an address change may result in an order of default and award of claimed monetary damages or other appropriate order in any National Futures Association or Commission
(a)(1) Each applicant or registrant as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person or leverage transaction merchant shall, in accordance with the instructions thereto, promptly correct any deficiency or inaccuracy in Form 7-R or Form 8-R that no longer renders accurate and current the information contained therein, with the exception of any change that requires withdrawal from registration under § 3.33. Each such correction shall be prepared and filed in accordance with the instructions thereto to create a Form 3-R record of such change.
(2) Where a registrant has changed its form of organization to or from a sole proprietorship, the registrant must request withdrawal from registration in accordance with § 3.33.
(3) Where any person becomes a principal of an applicant or registrant subsequent to the filing of the applicant's or registrant's current Form 7-R:
(i) If the new principal is not a natural person, the registrant shall update such Form 7-R to create a Form 3-R record of change.
(ii) If the new principal is a natural person, the registrant shall file a Form 8-R, completed in accordance with the instructions thereto and executed by such person who is a principal of the registrant and who was not listed on the registrant's initial application for registration or any amendment thereto.
(b) Each applicant or registrant as a floor broker, floor trader or associated person, and each principal of a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant must, in accordance with the instructions thereto, promptly correct any deficiency or inaccuracy in the Form 8-R or supplemental statement thereto to create a Form 3-R record of change.
(c)(1) After the filing of a Form 8-R or updating a Form 8-R to create a Form 3-R record of change by or on behalf of any person for the purpose of permitting that person to be an associated person of a futures commission merchant, retail foreign exchange dealer, commodity trading advisor, commodity pool operator, introducing broker, or a leverage transaction merchant, that futures commission merchant, retail foreign exchange dealer, commodity trading advisor, commodity pool operator, introducing broker or leverage transaction merchant must, within thirty days after the occurrence of either of the following, file a notice thereof with the National Futures Association indicating:
(2) Each person registered as, or applying for registration as, a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, commodity trading advisor, commodity pool operator, introducing broker, floor trader that is a non-natural person, or leverage transaction merchant must, within thirty days after the termination of the affiliation of a principal with the registrant or applicant, file a notice thereof with the National Futures Association.
(d) Each contract market or swap execution facility that has granted trading privileges to a person who is registered, has received a temporary license, or has applied for registration as a floor broker or floor trader, must notify the National Futures Association within sixty days after such person has ceased having trading privileges on such contract market or swap execution facility.
(a) A futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, or leverage transaction merchant must request that its registration be withdrawn prior to any voluntary resolution to file articles (or a certificate) of dissolution (or cancellation), and upon notice of any involuntary dissolution initiated by a third-party. A futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, leverage transaction merchant, floor broker or floor trader may request that its registration be withdrawn in accordance with the requirements of this section if:
(b) A request for withdrawal from registration as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity trading advisor, commodity pool operator, floor trader that is a non-natural person, or leverage transaction merchant must be made on Form 7-W, and a request for withdrawal from registration as a floor broker or individual floor trader must be made on Form 8-W, completed and filed with the National Futures Association in accordance with the instructions thereto. The request for withdrawal must be made by a person duly authorized by the registrant and must specify:
(e) A request for withdrawal from registration as a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, floor trader that is a non-natural person, or leverage transaction merchant on Form 7-W, and a request for withdrawal from registration as a floor broker or individual floor trader on Form 8-W, must be filed with the National Futures Association and a copy of such request must be sent by the National Futures Association within three business days of the receipt of such withdrawal request to the Commodity Futures Trading Commission, Division of Swap Dealer and Intermediary Oversight, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. In addition, any floor broker or individual floor trader requesting withdrawal from registration must file a copy of his or her Form 8-W with each contract market or swap execution facility that has granted him or her trading privileges, and any floor trader that is a non-natural person requesting withdrawal from registration must file a copy of its Form 7-W with each contract market or swap execution facility that has granted it trading privileges. Within three business days of any determination by the National Futures Association under § 3.10(d) to treat the failure by a registrant to file an annual Form 7-R as a request for withdrawal, the National Futures Association shall send the Commission notice of that determination.
(a) * * *
(2) The National Futures Association may grant a temporary license to any applicant for registration as a floor broker or individual floor trader upon the contemporaneous filing with the National Futures Association of:
(iv) Evidence that the applicant has been granted trading privileges by a contract market or swap execution facility that has filed with the National Futures Association a certification signed by its chief operating officer with respect to the review of an applicant's employment, credit and other history in connection with the granting of trading privileges.
(a) A temporary license issued pursuant to § 3.40 shall terminate:
(2) Immediately upon termination of the association of the applicant for registration as an associated person with the registrant which filed the sponsorship certification, or immediately upon loss of trading privileges by an applicant for registration as a floor broker or floor trader on all contract markets and swap execution facilities which filed the certification described in § 3.40;
(6) Immediately upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a designated contract market, swap execution facility or registered futures association within the time specified in section 10(g) of the National Futures Association's Code of Arbitration or the comparable time period specified in the rules of a contract market or other appropriate arbitration forum.
(8) Immediately upon notice to the applicant and the applicant's sponsor or the contract market or swap execution facility that has granted the applicant trading privileges that:
(i) The applicant failed to disclose relevant disciplinary history information on the applicant's Form 8-R; or
(ii) An event has occurred leading to a required disclosure on the applicant's Form 8-R.
(a) * * *
(5) The fingerprints of the applicant, if a sole proprietor, and of each principal (including each branch office manager) thereof on fingerprint cards provided by the National Futures Association for that purpose.
(a) A temporary license issued pursuant to § 3.44 shall terminate:
(6) Immediately upon failure to comply with an order to pay a civil monetary penalty, restitution, or disgorgement within the time permitted under section 6(e), 6b, or 6c(d) of the Act;
(8) Immediately upon failure to comply with an award in an arbitration proceeding conducted pursuant to the rules of a designated contract market, swap execution facility, or registered futures association within the time specified in section 10(g) of the National Futures Association's Code of Arbitration or the comparable time period specified in the rules of a contract market, swap execution facility, or other appropriate arbitration forum.
(10) Immediately upon notice to the applicant and the guarantor futures commission merchant that:
(i) The applicant or any principal (including any branch officer manager) failed to disclose relevant disciplinary history information on the applicant's Form 7-R or on a principal's Form 8-R; or
(ii) An event has occurred leading to a required disclosure on the applicant's Form 7-R or on a principal's Form 8-R.
(b) * * *
(1) * * *
(iv) The statement accompanying the notice referred to in paragraph (a)(2) of this section and, in an effort to have his registration modified rather than suspended, the Supplemental Sponsor Certification Statement signed by a sponsor, supervising floor broker or, in the case of a floor trader, a supervising registrant, principal, contract market, or swap execution facility, as appropriate for the registrant in accordance with § 3.60(b)(2)(i) and who meets the standards set forth in § 3.60(b)(2)(i)(A) and (C).
(b) * * *
(2)(i) In the response, if the person is not an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, the applicant or registrant shall also state whether he or she intends to show that registration would not pose a substantial risk to the public despite the existence of the disqualification set forth in the notice. If the person is an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, the applicant or registrant shall also state whether he or she intends to show that full, conditioned or restricted registration would not pose a substantial risk to the public despite the existence of the disqualification set forth in the notice. If the person is an associated person or an applicant for registration as an associated person and intends to make such a showing, he or she must also submit a letter signed by an officer or general partner authorized to bind the sponsor whereby the sponsor agrees to sign a Supplemental Sponsor Certification Statement and supervise compliance with any conditions or restrictions that may be imposed on the applicant or registrant as a result of a statutory disqualification proceeding under this section; if the person is a floor broker or a floor trader or an applicant for registration in either capacity and intends to make such a showing, he or she must, in the case of a floor broker or applicant for registration as a floor broker, also submit a letter signed by his employer or if he or she has no employer by another floor broker or, in the case of a floor trader or applicant for registration
(f) * * *
(3) If the person is an associated person, a floor broker or a floor trader or an applicant for registration in any of those capacities, evidence that the applicant's or registrant's registration on a conditioned or restricted basis would be subject to supervisory controls likely both to detect future wrongdoing by the applicant or registrant and protect the public from any harm arising from future wrongdoing by the applicant or registrant. Any decision providing for a conditioned or restricted registration shall take into consideration the applicant's or registrant's statutory disqualification and the time period remaining on such statutory disqualification, and shall fix a time period after which the registrant and his or her sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility may petition to lift or modify the conditions or restrictions in accordance with § 3.64.
(l) The failure of any sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility to fulfill its obligations with respect to supervision or monitoring of a conditioned or restricted registrant as agreed to in the Supplemental Sponsor Certification Statement shall be deemed a violation of this rule under the Act.
(a) * * *
(2) In the petition, the registrant and his or her sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market, or swap execution facility shall be limited to a showing, by affidavit, that the conditions or restrictions have been satisfied pursuant to the order which imposed them. The affidavit must be sworn to by a person with actual knowledge of the registrant's activities on behalf of the sponsor, supervising employer or floor broker, or supervising registrant, principal, contract market or swap execution facility.
(a) The Commission hereby delegates, until such time as it orders otherwise, to the Director of the Division of Swap Dealer and Intermediary Oversight or his or her designee the authority to grant or deny requests filed pursuant to § 3.12(g). The Director of the Division of Swap Dealer and Intermediary Oversight may submit to the Commission for its consideration any matter which has been delegated to him pursuant to § 3.12(g). The Commission hereby delegates, until such time as it orders otherwise, the authority to perform all functions specified in subparts B through D of this part to the persons authorized to perform them thereunder.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Sommers, Chilton and Wetjen voted in the affirmative; Commissioner O'Malia voted in the negative.
I support the final rule to amend certain provisions of Part 3 of the Commission's regulations regarding the registration of intermediaries. The final amendments are necessary to conform existing regulations to the new requirements in the Dodd-Frank Wall Street Reform and Consumer Protection Act.
The final rule would amend Part 3 to facilitate the extension of the existing registration process to apply to new categories of registrants, such as swap dealers and major swap participants. Customers will benefit from the increased transparency of the registration process. The final amendments also modernize existing provisions that will apply to all Commission registrants.
In addition, the Commission has made technical changes to permit legal entities (in addition to natural persons) to register as floor traders. This change was required to implement the exception from the definition of a swap dealer for floor traders that trade cleared swaps on swap execution facilities.
I respectfully dissent with the Commodity Futures Trading Commission's (“Commission”) final rule to adopt certain conforming amendments to part 3 of the Commission's regulations regarding the registration of intermediaries.
The Commission and NFA should follow the lead of the Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”) in terms of how professional and disciplinary background information is disclosed to the potential customers of SEC-registered broker-dealers. FINRA's BrokerCheck® is a tool that provides potential customers with detailed information regarding the professional backgrounds of current and former FINRA-registered brokerage firms and brokers, as well as investment adviser firms and representatives.
Today's futures markets need better technology solutions that will help futures customers make informed choices about the Commission-registered intermediaries with which they may wish to do business. Instead of promising to take action in the future, the Commission's final rule should do everything it can right now to protect customer funds. I believe the final rule should enable the public to receive access to information about current and formerly registered intermediaries who may seek to attain
Office of the Secretary, Food and Drug Administration, HHS.
Direct final rule.
The Food and Drug Administration (FDA) of the Department of Health and Human Services (HHS) will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA is exempting this system of records from certain requirements of the Privacy Act to protect the integrity of FDA's scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations. HHS/FDA is issuing a direct final rule for this action because the Agency expects that there will be no significant adverse comment on this rule.
This rule is effective January 10, 2013. Submit either electronic or written comments by November 13, 2012. If HHS/FDA receives no significant adverse comments within the specified comment period, the Agency will publish a document confirming the effective date of the final rule in the
You may submit comments, identified by Docket No. FDA-2011-N-0252, by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
•
Frederick Sadler, Division of Freedom of Information, Office of Public Information and Library Services, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-8975,
FDA is implementing a new system of records called the “FDA Records Related to Research Misconduct Proceedings.” The purpose of this system of records is to implement FDA's responsibilities for addressing research integrity and misconduct, in accordance with the Public Health Service (PHS) Policies on Research Misconduct (42 CFR part 93), for research performed by persons who are FDA employees, agents of the Agency, or who are affiliated with the Agency by contract or agreement. The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” (42 CFR 93.100(a)). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as the suspension of a contract, debarment, or an adverse personnel action against a Federal employee (42 CFR 93.407). In addition, under 42 CFR 93.401, FDA shall at any time during a research misconduct proceeding notify HHS' Office of Research Integrity (ORI) immediately to ensure that FDA's Office of Criminal Investigations, HHS Office of Inspector General, the Department of Justice, or other appropriate law enforcement agencies, are notified if there is a reasonable indication of possible violations of civil or criminal law.
FDA's new system of records will be modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OPHS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 75 FR 44847, August 31, 2009).
FDA's scientific misconduct inquiry and investigation records are located in the Office of the Chief Scientist in FDA's Office of the Commissioner. FDA is preparing to organize and operate these records as a “system of records” as that term is defined by the Privacy Act. FDA is publishing a System of Records Notice (SORN) for this system in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt from some of the Privacy Act requirements. For example, section 552a(k)(2) of the Privacy Act allows Agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the record access provision is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would otherwise be entitled to by Federal law, the individual must be granted access to the material except to the extent that the access would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence. In addition, section 552a(k)(5) of the Privacy Act permits an Agency to
As stated previously in this document, FDA may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, FDA scientific misconduct inquiry and investigative files are records compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where misconduct inquiry and investigative files are compiled solely for the purpose of making determinations as to the suitability for appointment as special Government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
HHS/FDA is therefore exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access and amendment provisions of the Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). As described in the following paragraphs, the exemptions are necessary in order to maintain the integrity of the research misconduct proceedings and to ensure that the FDA's efforts to obtain accurate and objective information will not be hindered. However, consideration would be given to requests for notification, access, and amendment that are addressed to FDA's Research Integrity Officer (System Manager) or Privacy Act Coordinator. The specific rationales for applying each of these exemptions are as follows:
•
•
•
•
•
As stated previously in this document, FDA's new system of records will be modeled after the system of records maintained by ORI. ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act, to ensure that these records will not be disclosed inappropriately (59 FR 36717, July 19, 1994). Likewise, FDA believes that exempting the new system, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA,” from the same Privacy Act provisions is essential to ensure that material in FDA's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/FDA from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
FDA has determined that the subject of this rulemaking is suitable for a direct final rule. HHS/FDA will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA is exempting this system of records from certain requirements of the Privacy Act to protect records compiled in the course of scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations. The Agency does not anticipate receiving any significant adverse comment on this rule.
Consistent with FDA's procedures on direct final rulemaking, we are publishing elsewhere in this issue of the
FDA is providing a comment period on the direct final rule of 75 days after the date of publication in the Federal Register. If FDA receives any significant adverse comment, we intend to withdraw this direct final rule before its effective date by publication of a notice in the
If FDA does not receive significant adverse comment, the Agency will publish a document in the
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
HHS/FDA has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Interested persons may submit to the Division of Dockets Management (see
Privacy.
Privacy.
Therefore, the Department of Health and Human Services is amending 21 CFR part 21 and 45 CFR part 5b to read as follows:
21 U.S.C. 371; 5 U.S.C. 552, 552a.
(d) Records in the following Food and Drug Administration Privacy Act Records Systems are exempt under 5 U.S.C. 552a(k)(2) and (k)(5) from the provisions enumerated in paragraph (a)(1) through paragraph (3) of this section: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
5 U.S.C. 301, 5 U.S.C. 552a.
(b) * * *
(2) * * *
(vii) * * *
(C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Long Island Sound, in the vicinity of Sands Point, NY. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays. This rule is intended to restrict all vessels from a portion of Long Island Sound before, during, and immediately after the fireworks event.
This rule will be effective from 10:30 p.m. on October 6, 2012 until 11:45 p.m. on October 7, 2012. This rule will be enforced from 10:30 p.m. to 11:45 p.m. on October 6, 2012, and from 10:30 p.m. to 11:45 p.m. on October 7, 2012.
Documents mentioned in this preamble are part of docket USCG-2012-0618. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Junior Grade Kristopher Kesting, Sector NY Waterways Management, U.S. Coast Guard; Telephone (718) 354-4154, 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.” Under 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 sufficient information about the event was not received in time to publish a NPRM followed by a final rule before the effective date, thus making the publication of a NPRM impractical. The Coast Guard received the information about the event on June 25, 2012. Any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest, since immediate action is needed to provide for the safety of life and property on navigable waters from the hazards associated with fireworks including unexpected detonation and burning debris.
The rule must become effective on the date specified in order to provide for the safety of spectators and vessels operating in the area near this event. Delaying this rule would be impracticable and contrary to the public interest, and would expose spectators and vessels to the hazards associated with the fireworks event.
The legal basis for this rule is 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
This temporary safety zone is necessary to ensure the safety of spectators and vessels from hazards associated with the fireworks display.
This rule establishes a temporary safety zone on the navigable waters of Long Island Sound, in the vicinity of Sands Point, NY. All persons and vessels shall comply with the instructions of the Captain of the Port (COTP) New York or the designated representative during the enforcement of the temporary safety zone. Entering into, transiting through, or anchoring within the temporary safety zone is prohibited unless authorized by the COTP New York, or the designated representative.
Based on the inherent hazards associated with fireworks, the COTP New York has determined that fireworks launches in close proximity to water crafts pose a significant risk to public safety and property. The combination of increased number of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, and debris, especially burning debris falling on passing or spectator vessels has the potential to result in serious injuries or fatalities. This temporary safety zone will restrict vessels from a portion of Long Island Sound around the location of the fireworks launch platform before, during, and immediately after the fireworks display.
The Coast Guard has determined that this regulated area will not have a significant impact on vessel traffic due to its temporary nature and limited size and the fact that vessels are allowed to transit the navigable waters outside of the regulated area.
Advance public notifications will also be made to the local mariners through appropriate means, which will include, but are not limited to, the Local Notice to Mariners as well as Broadcast Notice to Mariners.
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, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard's implementation of this temporary safety zone will be of short duration and is designed to minimize the impact to vessel traffic on the navigable waters. This temporary safety zone will only be enforced for approximately 75 minutes, in the late evening. Due to the location, vessels will be able to transit around the zone in a safe manner.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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.
(1) This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the navigable waters in the vicinity of the marine event during the effective period.
(2) This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for 75 minutes; late at night when vessel traffic is low, vessel traffic could pass safely around the safety zone, and the Coast Guard will notify mariners before activating the zone by appropriate means including but not limited to Local Notice to Mariners and Broadcast Notice to Mariners.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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
This rule will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
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 determined that 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 involves the establishment of a temporary safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination 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.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1)
(2)
(3)
(d)
(2) No vessels, except for fireworks barge and accompanying vessels, will be allowed to transit the safety zone without the permission of the COTP.
(3) All persons and vessels shall comply with the instructions of the COTP or the designated representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed.
(4) Vessel operators desiring to enter or operate within the regulated area shall contact the COTP or the designated representative via VHF channel 16 or 718-354-4353 (Sector New York command center) to obtain permission to do so.
(5) Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through the Local Notice to Mariners, unless authorized by COTP or the designated representative.
(6) Upon being hailed by a U.S. Coast Guard vessel or the designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.
(7) The COTP or the designated representative may delay or terminate any marine event in this subpart at any time it is deemed necessary to ensure the safety of life or property.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action on the Regional Haze State Implementation Plan (SIP) submitted by the State of New York. EPA is approving seventeen source-specific SIP revisions containing permits for Best Available Retrofit Technology, revisions for Title 6 of the New York Codes, Rules and Regulations, Part 249, “Best Available Retrofit Technology (BART)” and section 19-0325 of the New York Environmental Conservation Law which regulates the sulfur content of fuel oil. These revisions to the SIP addressing regional haze were submitted by the State of New York on March 15, 2010, and supplemented on August 2, 2010, April 16, 2012 and July 2, 2012. These SIP revisions were submitted to address Clean Air Act requirements and EPA's rules for states to prevent and remedy future and existing anthropogenic impairment of visibility in mandatory Class I areas through a regional haze program. Although New York State addressed most of the issues identified in EPA's proposal, EPA is promulgating a Federal Implementation Plan to address two sources where EPA is disapproving New York's BART determinations.
This rule is effective on September 27, 2012.
EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2012-0296. All documents in the docket are listed on the
Robert F. Kelly, Air Planning Section, Air Programs Branch, EPA Region 2, 290 Broadway, New York, New York 10007-1866. The telephone number is (212) 637-4249. Mr. Kelly can also be reached via electronic mail at
Throughout this document, wherever “Agency,” “we,” “us,” or “our” is used, we mean the EPA.
EPA is approving New York's State Implementation Plan (SIP) revisions addressing regional haze submitted on March 15, 2010, and supplemented on August 2, 2010, April 16, 2012, and July 2, 2012. EPA is supplementing New York's SIP with a Federal Implementation Plan (FIP) for three units at two BART sources where EPA is disapproving these BART determinations. The following paragraphs summarize each of EPA's actions.
EPA is approving aspects of New York's Regional Haze SIP revision as follows:
• The measures enacted by New York are shown to produce emission reductions that are sufficient to meet New York's share of the emission reductions needed to meet reasonable progress goals (found at 40 CFR 51.308(d)(1)) at Class I areas affected by New York's emissions.
• New York's Long Term Strategy, since New York submitted final approvable permit modifications for all facilities on April 16, 2012 and July 2, 2012 (except for the Roseton and Danskammer Generating Stations), in a timely manner with the level of control in EPA's April 25, 2012 proposal. EPA's FIP contains BART determinations and emission limits for the Roseton and Danskammer Generating Stations.
• New York's SIP revision consisting of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR), Part 249, “Best Available Retrofit Technology (BART).”
• New York's SIP revision consisting of section 19-0325 of the New York Environmental Conservation Law which regulates the sulfur content of fuel oil.
EPA is approving the following facility BART determinations and
EPA is disapproving the following BART determinations:
• New York's Sulfur Dioxide (SO
• New York's SO
EPA is promulgating a FIP to address the BART determinations identified above in our partial disapproval of New York's Regional Haze SIP.
EPA is taking this action pursuant to section 110 of the Clean Air Act (the Act or CAA). For additional details on EPA's analysis and findings, the reader is referred to the April 25, 2012 proposal (77 FR 24794) and the May 9, 2012 Notice of Data Availability (77 FR 27162). New York's entire Regional Haze SIP revisions and the full text of the public comments are included in the Docket (EPA-R02-OAR-2012-0296) and available at
On April 25, 2012, EPA proposed to take action on a revision to the SIP addressing regional haze submitted by New York. In that proposal, EPA proposed to address through a FIP certain requirements not addressed in New York's regional haze SIP submission or, alternatively, to approve a substantively identical SIP revision by New York, should the state timely submit such a revision. In two letters, both dated April 16, 2012, New York submitted the additional materials relevant to our proposed action on its regional haze SIP submission, including proposed SIP revisions addressing the requirements for BART for a number of sources and addressing the New York State Law that regulates the sulfur content of fuel oil. Subsequently, on May 9, 2012 (77 FR 27162), EPA published a notice of data availability to notify the public that New York submitted additional information to supplement New York's Regional Haze SIP.
As discussed in the May 9, 2012 notice, EPA was aware that New York intended to submit additional information relevant to the action EPA was proposing on New York's Regional Haze SIP. EPA, therefore, discussed in its proposal the possible actions EPA would take should this information be timely submitted. EPA included in the record the draft information that New York was in the process of finalizing and submitting as part of its SIP revision. EPA evaluated this draft information as part of the Agency's proposed action on New York's Regional Haze SIP. EPA's May 9, 2012 notice indicated that EPA's final action will be based on the proposed rulemaking, the additional information identified in the notice of data availability, and an assessment of any public comments that may be received. On July 2, 2012, New York submitted the remaining adopted permits implementing BART which were not included in the April 16, 2012 submission.
New York's April 16, 2012 SIP revisions requested that EPA take action on proposed SIP revisions from New York in parallel with the state's processing of the following draft Title V permits that the state intended to submit as SIP revisions to meet the BART requirement: Bowline Generating Station, Danskammer Generating Station, Kodak Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning Insulating Systems, and Syracuse Energy Corporation.
New York's April 16, 2012 SIP revisions also requested processing of the following adopted Title V permits implementing BART for the following facilities: ALCOA Massena Operations (West Plant), Arthur Kill Generating Station, Con Edison 59th Street Station, EF Barrett Power Station, Holcim (US) Inc—Catskill Plant, International Paper Ticonderoga Mill, Lafarge Building Materials, Lehigh Northeast Cement, Northport Power Station, Ravenswood Generating Station, Ravenswood Steam Plant, Roseton Generating Station
Lastly, New York submitted a letter dated July 2, 2012 containing SIP revisions for the remaining adopted Title V permits implementing BART for five of the following facilities previously discussed in New York's April 16, 2012 letter: Bowline Generating Station, Kodak Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning Insulating Systems, and Syracuse Energy Corporation. As further discussed in the Response to Comments below, New York also submitted an updated permit for Lehigh Northeast Cement.
New York did not make any substantive changes to the source specific Title V permits to incorporate BART other than those discussed in EPA's April 25, 2012 proposal and May 9, 2012 notice or as discussed in the Response to Comments below. Since the SIP revisions match the terms of our proposed FIP, and the SIP revisions have been adopted by New York and submitted formally to EPA for incorporation into the SIP, EPA is approving the following facility BART determinations and emissions limits: ALCOA Massena Operations (West Plant), Arthur Kill Generating Station, Bowline Generating Station, Con Edison 59th Street Station, EF Barrett Power Station, Holcim (US) Inc—Catskill Plant, International Paper Ticonderoga Mill, Kodak Operations at Eastman Business Park, Lafarge Building Materials, Lehigh Northeast Cement, Northport Power Station, Oswego Harbor Power, Owens-Corning Insulating Systems, Ravenswood Generating Station, Ravenswood Steam Plant, Roseton Generating Station (NO
New York promulgated Part 249 to require BART eligible facilities to
New York's April 16, 2012 SIP revisions request that EPA include in New York's Regional Haze SIP the New York State legislation regulating the sulfur content of fuel oil, Bill Number S1145C, which amends the New York Environmental Conservation Law to include a new section 19-0325, effective July 15, 2010. EPA's May 9, 2012 notice discussed New York's SIP revision request and EPA's proposed approval of this request.
Major SO
As discussed in EPA's April 25, 2012 proposal, in the event New York did not submit a SIP revision with final permit modifications for all BART sources, which match the terms of our proposed FIP, EPA proposed to publish a final rulemaking with a FIP for those BART sources. While New York's revised SIP covered most of the units addressed in EPA's proposal, it did not include final BART permit modifications consistent with our proposed FIP for certain of the units at Dynegy's Roseton and Danskammer Generating Stations. Therefore EPA is disapproving those portions of the SIP and promulgating a FIP addressing the SO
The final FIP includes the following elements:
• NO
• SO
• PM
• SO
• Monitoring, record-keeping, and reporting requirements for the above three units to ensure compliance with these emission limitations.
EPA's April 25, 2012 proposal contained proposed regulatory language for § 52.1686 of title 40 of the Code of Federal Regulations (CFR) for the purpose of adding new provisions containing EPA's FIP for Regional Haze. EPA notes that since New York submitted SIP revisions to address most of EPA's proposed FIP, EPA is finalizing only the regulatory language in section 51.1686 that covers EPA's FIP for the Roseton and Danskammer Generating Stations.
We encourage New York at any time to submit a SIP revision to incorporate provisions that match the terms of our FIP, or relevant portion thereof. If EPA were to approve such a SIP revision, after public notice and comment, the SIP approved provisions could replace the FIP provisions.
EPA received several comments from the following parties in response to our April 25, 2012 proposal and May 9, 2012 notice of data availability: ALCOA Massena Operations (ALCOA), Dynegy Northeast Generation, Inc. (Dynegy), Earthjustice on behalf of the National Parks Conservation Association and Sierra Club (Earthjustice), GenOn Bowline, LLC (Bowline), Lehigh Northeast Cement Group (Lehigh), New York State Department of Environmental Conservation (New York), and the United States Forest Service (US Forest Service). A summary of the comments and EPA's responses are provided below.
EPA's April 25, 2012 proposal indicated NO
• By July 1, 2014, NO
• By July 1, 2014, NO
• By July 1, 2014, oil-firing is limited to 3.1 million barrels during the ozone season and 4.6 million barrels during the non-ozone season.
• The limit for oil and gas dual fuel firing periods will be heat input weighted between 0.15 lb/MMBtu and 0.25 lb/MMBtu.
The correct NO
With respect to the BART compliance date, EPA's April 25, 2012 proposal indicated a compliance date of January 1, 2014, consistent with the compliance date contained in New York's BART regulation Part 249. New York issued final BART permit modifications for the Bowline Units requiring compliance by July 1, 2014. While the July 1, 2014 compliance date is six months later than the January 1, 2014 compliance date in New York's Part 249, EPA has determined that the July 1, 2014 compliance date is still consistent with EPA's BART Guidance for compliance as expeditiously as possible but no later
EPA notes that the previous versions of the BART Permit modifications indicated these emission limits do not apply during start-up and shut-down periods. However, EPA informed New York that the BART emission limits must apply at all times. Therefore, the final BART determinations and final BART Title V permit modification submitted to EPA as part of the July 2, 2012 SIP revisions do not contain any exclusions for start-up and shut-down periods. Lastly, EPA did not receive any other comments related to Bowline's BART determinations or permit limits, except from Bowline itself. In response to Bowline's comments and additional supporting analyses and documentation provided by Bowline and New York, EPA is therefore approving Bowline's BART determinations and BART emission limit permit conditions presented above.
EPA did not receive any other comments related to Lehigh's BART determinations or permit limits, except from Lehigh and New York. In response to these comments on EPA's April 25, 2012 proposal, and additional supporting analyses and documentation provided by Lehigh and New York, EPA is therefore approving Lehigh's BART determinations and BART emission limit permit conditions presented above since the revised Title V permit is consistent with the terms of our proposed FIP, has been adopted by New York, and submitted formally to EPA for incorporation into the SIP.
New York's proposed BART determination for the Danskammer facility listed a combination of policies and practices as a control option for both SO
The engineering study identified other control options, including Flue Gas Desulfurization (“FGD”) options with Lime Based Spray Dryer; Circulating Dry Scrubber and Wet Limestone; options for Dry Sorbent Injection of minerals such as Trona; combustion of alternative coals; 100% combustion of natural gas; and co-firing natural gas. In accordance with Step Two of the BART Guidelines, the facility evaluated the technical feasibility of each control option, concluding that all options were technically feasible for the Danskammer facility. It then evaluated each control option's cost effectiveness, conducted impact analyses on cost of compliance, energy impacts, and nonair quality environmental impacts, and modeled selected control option's visibility impact using the CALPUFF modeling program; all in accordance with Steps Two through Four of the BART Guidelines. 40 CFR part 51 App. Y.
As required by New York's BART regulation, Part 249, the facility conducted a side-by-side comparison and the facility showed that the use of an emission limitation based on the application of the above practices/processes was BART for the Danskammer facility.
However, EPA's own analysis of the combination of processes/practices identified by Dynegy and the proposed determination by New York as BART showed that a lower emission limitation than that contained in the state's plan is achievable with this technology. EPA conducted its own evaluation and set a lower estimated emission limitation, 0.09 lb/MMBtu, as a control option. It concluded that “these same control option strategies can achieve a more stringent SO
Since EPA's proposed BART emission limitation was set with reference to processes/practices evaluated using the BART Guidelines, and since processes/practices can be considered as the “best system of emission reduction” pursuant to those same guidelines, EPA's proposed emission limitation is not arbitrary. 40 CFR part 51 App. Y. Therefore EPA is finalizing the SO
Secondly, Earthjustice comments and provides detailed technical reasons as to why SCR should be considered BART for this facility with a NO
Dynegy evaluated SCR plus flue gas recirculation (FGR) using a control efficiency of 91.0% that is equivalent to a NO
Furthermore, Dynegy's visibility analysis included a summary of the number of days that exceed 1.0 dv, 0.5 dv and 0.1 dv for each NO
Based upon the two visibility analyses described above, EPA concludes that Earthjustice's recommended BART technology, i.e., SCR, with an emission limit of 0.05 lb/MMBtu, would not be expected to provide any significant improvement in visibility at the seven Class I areas over Dynegy's proposed BART implementation of a combination of specific possible controls with an emission limit of 0.12 lb/MMBtu. Therefore, EPA concludes that NO
EPA concludes that it appropriately took into account the visibility impacts across all seven of the impacted Class I areas in deciding to adopt more stringent BART limits. There are many large sources of pollutants that reduce visibility and impact several Class I areas in the northeastern United States. EPA has included, in our review of the multi-factor analysis, the impact these major sources have on more than one Class I area. The smaller impacts from these major sources combine with impacts from other major sources in the northeast to have important impacts on visibility in these protected areas. While EPA is primarily concerned with impacts at the Class I area nearest each major source, EPA encourages cost-effective control strategies that improve visibility across many Class I areas. Reductions in visibility-impairing pollutants from a major facility, with reduced impacts from similarly large sources in other areas and other states, will go a long way toward improving visibility in these areas.
In summary, EPA determined the existing electrostatic precipitator control represents the BART level of control for PM for this particular facility.
Table 9 of Appendix W is the final MANE-VU emission inventory which was modeled to show that implementing the MANE-VU measures would improve visibility at MANE-VU's Class I areas sufficiently to meet the progress goals for 2018 for these areas. For the final emission inventory described in Appendix W, MANE-VU increased the emissions of SO
New York's existing sulfur in fuel rule does not cover all of the types of fuel oil included in the program agreed to by the MANE-VU states. New York estimates that there is a difference of 17,669 tons per year of SO
New York indicates it is in the process of developing regulations to expand the low sulfur fuel oil program to achieve reductions before 2018. EPA fully supports New York's timely development and adoption of these regulations.
EPA has evaluated the proposed revisions to the SIP submitted by the State of New York that address regional haze for the first planning period from 2008 through 2018. EPA is partially approving and partially disapproving the revisions to the SIP, which address the Regional Haze requirements of the Clean Air Act for the first implementation period. This approval includes the Reasonable Progress portion of the plan, New York's source-specific SIP revisions for implementation of BART for 17 BART-subject sources, 6 NYCRR Part 249, “Best Available Retrofit Technology (BART),” effective May 6, 2010, and section 19-0325 of the New York Environmental Conservation Law, effective July 15, 2010, which regulates the sulfur content of fuel oil.
EPA is finalizing amendments to 40 CFR 52.1670(d) “EPA-Approved New York Source-Specific Provisions” to incorporate those sources with new emission limitations or requirements that resulted from the BART determinations that are not part of the applicable SIP.
EPA is promulgating a partial FIP to address the deficiencies in the plan resulting from our partial disapproval of New York's Regional Haze SIP. Specifically, EPA's FIP contains BART determinations and emission limits for the Roseton and Danskammer Generating Stations.
We have fully considered all significant comments on our proposal, and, except as noted in sections II, III and IV above, have concluded that no other changes from our proposal are warranted. Our action is based on an evaluation of New York's SIP submittals
This action will promulgate emission requirements for two facilities and is therefore not a rule of general applicability. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR Part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The Regional Haze FIP that EPA is finalizing for purposes of the regional haze program consists of imposing Federal controls to meet the BART requirement for NO
This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. It is a rule of particular applicability that affects only two facilities in the State of New York. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule only applies to two facilities in the State of New York.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action addresses the State not fully meeting its obligation to adopt a SIP that meets the regional haze requirements under the CAA. Thus, Executive Order 13132 does not apply to this action. Although section 6 of Executive Order 13132 does not apply to this action, EPA did consult with the state government in developing this action. A summary of the concerns raised during the comment period and EPA's response to those concerns is provided in section IV of this preamble.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the action EPA is taking neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. It will not have substantial direct effects on tribal government. Thus, Executive Order 13175 does not apply to this action.
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this rule will limit emissions, the rule will have a beneficial effect on children's health by reducing air pollution.
This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Today's action does not require the public to perform activities conducive to the use of voluntary consensus standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
We have determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule limits emissions of NO
The Congressional Review Act, 5 U.S.C 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2012. Pursuant to
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401-7671q.
The additions and revisions reads as follows:
(c) * * *
(d) * * *
(e) * * *
(a)
(b)
(c)
(2) These emission limitations shall apply at all times, including startups, shutdowns, emergencies, and malfunctions.
(d)
(e)
(2)
(ii) An hourly average SO
(iii) Data reported to meet the requirements of this section shall not include data substituted using the missing data substitution procedures of subpart D of 40 CFR part 75, nor shall the data have been bias adjusted according to the procedures of 40 CFR part 75.
(f)
Fuel supplier certification shall include the following information:
(1) For distillate oil:
(i) The name of the oil supplier;
(ii) A statement from the oil supplier that the oil complies with the specifications under the definition of distillate oil in § 60.41c; and
(iii) The sulfur content or maximum sulfur content of the oil.
(2) For residual oil:
(i) The name of the oil supplier;
(ii) The location of the oil when the sample was drawn for analysis to determine the sulfur content of the oil, specifically including whether the oil was sampled as delivered to the affected facility, or whether the sample was drawn from oil in storage at the oil supplier's or oil refiner's facility, or other location;
(iii) The sulfur content of the oil from which the shipment came (or of the shipment itself); and
(iv) The method used to determine the sulfur content of the oil.
(3) For coal:
(i) The name of the coal supplier;
(ii) The location of the coal when the sample was collected for analysis to determine the properties of the coal, specifically including whether the coal was sampled as delivered to the affected facility or whether the sample was collected from coal in storage at the mine, at a coal preparation plant, at a coal supplier's facility, or at another location. The certification shall include the name of the coal mine (and coal seam), coal storage facility, or coal preparation plant (where the sample was collected);
(iii) The results of the analysis of the coal from which the shipment came (or of the shipment itself) including the sulfur content, moisture content, ash content, and heat content; and
(iv) The methods used to determine the properties of the coal.
(4) For other fuels:
(i) The name of the supplier of the fuel;
(ii) The potential sulfur emissions rate or maximum potential sulfur emissions rate of the fuel in nanograms per joule (ng/J) heat input; and
(iii) The method used to determine the potential sulfur emissions rate of the fuel.
(g)
(h)
(1) All CEMS data, including the date, place, and time of sampling or measurement; parameters sampled or measured; and results.
(2) All fuel supplier certifications and information identified in paragraph (f)(1), (2), (3), or (4) of this section, as applicable.
(3) Records of quality assurance and quality control activities for emissions measuring systems including, but not limited to, any records required by 40 CFR Part 75.
(4) Records of all major maintenance activities conducted on emission units, air pollution control equipment, and CEMS.
(5) Any other records required by 40 CFR part 75.
(i)
(1) Owner/operator shall submit quarterly excess emissions reports no later than the 30th day following the end of each calendar quarter. Excess emissions means emissions that exceed the emissions limits specified in paragraph (c) of this section. The reports shall include the magnitude, date(s), and duration of each period of excess emissions, specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the unit, the nature and cause of any malfunction (if known), and the corrective action taken or preventative measures adopted.
(2) Owner/operator shall submit quarterly CEMS performance reports, to include dates and duration of each period during which the CEMS was inoperative (except for zero and span adjustments and calibration checks), reason(s) why the CEMS was inoperative and steps taken to prevent recurrence, any CEMS repairs or adjustments, and results of any CEMS performance tests required by 40 CFR part 75 (Relative Accuracy Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
(3) When no excess emissions have occurred or the CEMS has not been inoperative, repaired, or adjusted during the reporting period, such information shall be stated in the report.
(4) Owner/operator shall submit semi-annual fuel certification reports no later
(5) Owner/operator shall submit an annual emissions limitation calculation report no later than the 30th day following the end of the calendar year or quarter if a rolling average is required in paragraph (c).
(j)
(2) Owner/operator shall submit semi-annual progress reports on construction of any such equipment.
(3) Owner/operator shall submit notification of initial startup of any such equipment.
(k)
(l)
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania on April 12, 2010, as amended on August 3, 2012. The SIP revision demonstrates attainment of the 1997 annual fine particulate matter (PM
This final rule is effective on September 27, 2012.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2010-0391. All documents in the docket are listed in the
Rose Quinto, (215) 814-2182, or by email at
On November 2, 2011 (76 FR 67640), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of the Pennsylvania 1997 annual PM
On November 27, 2009 (74 FR 62251), EPA published findings of failure to submit a SIP revision that demonstrates attainment of the 1997 PM
On May 12, 2005 (76 FR 70093), EPA published the Clean Air Interstate Rule (CAIR) that addresses the interstate transport requirements of the CAA with respect to the 1997 ozone and 1997 PM
On December 30, 2011, the Court issued an order addressing the status of the Transport Rule and CAIR in response to motions filed by numerous parties seeking a stay of the Transport Rule pending judicial review. In that order, the Court stayed the Transport Rule pending the Court's resolution of the petitions for review of that rule in
EPA does not believe that the circumstances set forth above preclude EPA from approving the April 12, 2012 Pennsylvania attainment plan as amended on August 3, 2012 for the Philadelphia Area. While the monitoring data that show the Philadelphia Area attained the 1997 annual PM
Most importantly, EPA notes that this action is approving an attainment plan that demonstrated that the Philadelphia Area would attain the 1997 annual PM
Pennsylvania's SIP revision demonstrates attainment of the 1997 annual PM
On August 3, 2012, Michael L. Krancer, Secretary of PADEP sent a letter to Shawn M. Garvin, Regional Administrator of EPA Region III withdrawing the analysis of RACM/RACT which had been included in the April 12, 2010 attainment plan since the requirement for the RACM/RACT analysis was suspended by the May 16, 2012 (77 FR 28782) clean data determination pursuant to 40 CFR 51.1004(c). Specifically, PADEP withdrew section IV.B. in its entirety, pages 29-31 in part, and Appendix G in its entirety.
Other specific requirements of the 1997 annual PM
EPA reviewed the methodology that PADEP used to estimate marine vessel emissions and found that proper guidance was followed pertaining to gathering characteristics of the port that included the types of vessels, the shipping traffic, arrival information, and any limitations on the data gathered. EPA verified that the marine vessels' emissions were accounted for in the supporting spreadsheets provided for nonroad emission estimates. EPA also verified that land-based sources for cargo handling equipment, such as terminal tractors, cranes, container handlers and forklifts, were accounted for in the nonroad spreadsheets by county provided by PADEP.
EPA is approving Pennsylvania's April 12, 2010 attainment plan as amended on August 3, 2012 for the 1997 annual PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to the Pennsylvania 1997 annual PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
Department of Health and Human Services.
Direct Final rule.
The Department of Health and Human Services (HHS or Department), through the National Institutes of Health (NIH), is implementing a new system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH.” HHS is exempting this system of records from certain provisions of the Privacy Act to protect the integrity of NIH research misconduct proceedings and to protect the identity of confidential sources in such proceedings. HHS is issuing a direct final rule for this action because the agency expects that there will be no significant adverse comment on this rule. Elsewhere in this issue of the
This rule is effective January 10, 2013. Submit either electronic or written comments by November 13, 2012. If HHS/NIH receives no significant adverse comments within the specified comment period, the agency will publish a document confirming the effective date of the final rule in the
You may submit comments, identified by [Docket No(s).], by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
•
To ensure more timely processing of comments, HHS/NIH is no longer accepting comments submitted to the agency by email. HHS/NIH encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the
Jerry Moore, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, MD 20852-7669, telephone 301-496-4607, fax 301-402-0169, email
NIH is implementing a new system of records called, “NIH Records Related to Research Misconduct Proceedings” (09-25-0223). This system of records is part of NIH's implementation of its responsibilities under the Public Health Service (PHS) Policies on Research Misconduct, 42 CFR part 93. The system notice applies to alleged or actual research misconduct involving research: (1) Carried out in NIH facilities by any person; (2) funded by the NIH Intramural Research Program (IRP) in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. A person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH, is covered by the system if, for example, he or she is involved in: (1) NIH- or PHS-supported biomedical or behavioral research; (2) NIH- or PHS-supported biomedical or behavioral research training programs; (3) NIH- or PHS-supported activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; (4) plagiarism of research records produced in the course of NIH- or PHS-supported research, research training or activities related to that research or research training; or (5) an application or proposal for NIH or PHS support for biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information (regardless of whether it is approved or funded).
The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to
NIH's system of records is modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 74 FR 44847, Aug. 31, 2009).
NIH's records related to research misconduct proceedings are located in the Office of Intramural Research in NIH's Office of the Director. NIH is updating its organization and operation of these records, to be exempt from Privacy Act requirements, as provided in this direct final rule and in a new “System of Records Notice” which NIH is publishing in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Act permits certain types of systems to be exempt from some of the Privacy Act requirements, including the access requirement. For example, section 552a(k)(2) allows agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the access requirement is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would be otherwise entitled to by Federal law, the individual must be granted access to the material unless the access would reveal the identity of a source who furnished information to the Government under an express promise of confidentiality. In addition, section 552a(k)(5) permits an agency to exempt investigatory material from certain Privacy Act provisions where such material is compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence.
As stated above, NIH may take administrative action in response to a research misconduct proceeding and, where a civil or criminal fraud may have taken place, NIH may refer the matter to the appropriate investigative body. As such, NIH's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of record. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
Exempting the system from Privacy Act provisions pertaining to providing an accounting of disclosures, access and amendment, notification, and procedures and rules is necessary to maintain the integrity of the research misconduct proceedings and to ensure that the NIH's efforts to obtain accurate and objective information will not be hindered.
Accordingly, HHS/NIH is exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the accounting, access, and amendment, notification and procedures and rules provisions of the Privacy Act (paragraphs (c)(3), (d)(1)-(4), (e)(4)(G) and (H), and (f)) for the reasons stated below. However, consideration will be given to requests for notification, access, and amendment that are addressed to the System Manager. The specific rationale for exempting the system from each of these provisions is as follows:
• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures is needed during the pendency of a research misconduct proceeding. Release of an accounting of disclosures to an individual who is the subject of a pending research misconduct assessment, inquiry or investigation could prematurely reveal the nature and scope of the assessment, inquiry or investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (d)(1). An exemption from the access requirement is needed both during and after a research misconduct proceeding, to avoid revealing the identity of any source who was expressly promised confidentiality. Only material that would reveal a confidential source will be exempt from access. Protecting the identity of a source is necessary when the source is unwilling to come forward and report possible research misconduct because of fear of retaliation (e.g., from an employee or co-worker).
• Subsections (d)(2) through (d)(4). An exemption from the amendment provisions is necessary while one or more related research misconduct proceedings are pending. Allowing amendment of investigative records in a pending proceeding could interfere with that proceeding; even after that proceeding is concluded, an amendment could interfere with other pending or prospective research misconduct proceedings, or could significantly delay inquiries or investigations in an attempt to resolve questions of accuracy, relevance, timeliness, and completeness.
• Subsections (e)(4)(G) and (H). An exemption from the notification provisions is necessary during the pendency of a research misconduct proceeding, because notifying an individual who is the subject of an assessment, inquiry, or investigation of the fact of such proceedings could prematurely reveal the nature and scope of the proceedings in a manner that could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (f). An exemption from this requirement to establish procedures for notification, access to records, amendment of records, or appeals of denials of access to records, is necessary because the procedures would serve no purpose in light of the other exemptions, to the extent that those exemptions apply.
As stated above, NIH's system of records is modeled after the system of records maintained by HHS' Office of Research Integrity (ORI). ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, accounting, access, and amendment provisions of the Privacy Act, to ensure
HHS/NIH has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that this final rule is not a significant regulatory action under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. NIH does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
Privacy.
For the reasons set out in the preamble, the Department's Privacy Act Regulations, Part 5b of 45 CFR Subtitle A, are amended as follows:
5 U.S.C. 301, 5 U.S.C. 552a
(b) * * *
(2) * * *
(vii) * * *
(D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09-25-0223.
Federal Maritime Commission.
Final rule.
The Federal Maritime Commission amends its rules regarding the amount of bond coverage on the optional China Bond Rider for Non-Vessel-Operating Common Carriers (NVOCCs). The final rule is intended to provide NVOCCs with the ability to post a bond with the Commission that satisfies the equivalent of 800,000 Chinese Renminbi, for which the equivalent U.S. Dollar amount has fluctuated since the regulation was first adopted by the Commission.
The final rule is effective November 23, 2012.
Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, Phone: (202) 523-5725; Rebecca A. Fenneman, General Counsel, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573-0001, Phone: (202) 523-5740,
Under a Memorandum of Consultations pursuant to the 2003 bilateral Maritime Agreement between the United States and the People's Republic of China (China or the PRC), the PRC does not require U.S. Non-Vessel-Operating Common Carriers (NVOCCs) to make a cash deposit in a Chinese bank as would otherwise be required by Chinese regulations, so long as the NVOCC:
(1) Is a legal person registered by U.S. authorities;
(2) obtains an FMC license as an NVOCC; and
(3) provides evidence of financial responsibility in the total amount of Chinese Renminbi (RMB) 800,000 or U.S. $96,000.
An FMC-licensed U.S. NVOCC that voluntarily provides an additional surety bond in the amount of $21,000 (denominated in U.S. Dollars or Chinese Renminbi), which by its conditions is available for potential claims of the Ministry of Transport (MOT) of the PRC (as well as other Chinese agencies) for violations of the Chinese Regulations on International Maritime Transportation, may register in the PRC without paying the cash deposit otherwise required by Chinese law and regulation.
In 2004, the Commission issued a Notice of Proposed Rulemaking (NPR) to explore mechanisms for NVOCCs to file proof of such additional financial responsibility. See 69 FR 4271 (January 29, 2004). On April 1, 2004, the Commission issued a final rule that amended its regulations governing proof of financial responsibility for ocean transportation intermediaries to allow an optional bond rider to be filed with a licensed NVOCC's proof of financial responsibility to provide additional proof of financial responsibility for such carriers serving the U.S. oceanborne trade with the PRC. Docket No. 04-02,
On April 15, 2011, the Commission received a communication from the Maritime Administration of the U.S. Department of Transportation, transmitting a request from the MOT to revise the Commission's regulations at Appendix E to Subpart C of Part 515—
The Commission issued a Notice of Inquiry (NOI) soliciting public commentary on the proposal on June 10, 2011. The NOI sought general comments on the optional China Bond Rider, and also presented three questions for particular study:
1. Describe how, and to what extent, the optional rider to the required NVOCC bond has impacted your company's business operations? Does this make for more certainty in your business operation? Has the optional rider to the required NVOCC bond impacted your overall business costs? If so, how?
2. What do you see as the advantages and disadvantages of an adjustment to the current optional rider to the required NVOCC bond?
3. Please explain whether, and if so, how significantly your business costs/operations would be affected by a provision that allows for adjustments to the U.S. Dollar amount required in a NVOCC optional China bond rider when the USD (U.S. Dollar) and the RMB (Renminbi) exchange rate fluctuates 20% higher or lower.
A more reasonable approach might be for China to determine the exchange value to be assigned in a given 12 month period, and allow NVOCC's to offset the bond coverage based on total bond value, adding any additional coverage as might be required to make up any shortfall not already covered by multiple branch offices. This would limit the bond transactions significantly, while providing simplicity and stability for all involved.
The NCBFAA also accepts that the respective currencies have fluctuated, and some justification exists for the Chinese Government's request to increase the amount of the optional Bond Rider. Additionally, although the NCBFAA does not object to the Commission's consideration of an optional Bond Rider adjustment any time the currency values fluctuate more than 20%, it does not believe that an automatic adjustment “is necessary or appropriate.” The NCBFAA also echoes the beliefs of Mohawk and Econocaribe that many NVOCCs already have an aggregate coverage of greater than $125,000 (which would surpass the adjusted optional China Bond Rider amount of $122,000). If the Chinese Government assented, NCBFAA posits that allowing the NVOCCs to count all bond coverage might actually decrease the cost for many U.S.-licensed NVOCCs who do business in China. The NCBFAA looks to the Annex to the 2003 Bilateral Maritime Agreement for support, noting that it did not require a Bond Rider of a certain amount, but instead required evidence of financial responsibility of a certain total amount ($96,000). The Agreement left open how that total may be satisfied. The NCBFAA thus suggests that the Commission seek the Chinese Government's assent to accepting a total bond amount in addition to a Bond Rider in satisfying the $122,000 amount. Each NVOCC could thus determine whether it was more cost effective to procure a Bond Rider, or simply rely on its aggregate coverage amount that exceeded $122,000. This would reduce operating costs for some NVOCCs, but would still maintain adequate coverage.
The Commission also issued a Notice of Proposed Rulemaking (NPR) soliciting public commentary on the proposal on January 5, 2012. The NPR sought general comments on the optional China Bond Rider and on the proposed rulemaking. The proposed rule amended Appendix F to Subpart C of Part 515 (group bonds) to increase the amount specified from $21,000 to $50,000. In response to the comments the Commission received from the Notice of Inquiry from June 10, 2012, the proposed rule amended Appendix E to Subpart C of Part 515 (individual NVOCC bonds) to remove pre-specified rider amounts to account for variances in NVOCCs' combined total surety levels maintained to meet the Commission's other financial responsibility requirements, including $10,000 in bond coverage that NVOCCs maintain for each of their branch offices pursuant to 46 CFR 515.21(a)(4). This recognition means that NVOCCs with branch offices may have rider amounts that vary to satisfy the level of coverage requested by the PRC, so long as their total coverage equals $125,000. The Commission sought comments particularly on the feasibility of these proposed revisions.
Zehner did express concern regarding the timing of implementation as riders can generally only be altered or added in accord with “the underlying bond's anniversary cycle.” Roanoke proposes a 12-month phase-in period in order to limit the impact of immediate compliance on the industry and FMC resources. Alternatively, Roanoke would request at least 90 days notice prior to the regulation taking effect as to allow time for proper processing of bonding alterations.
Roanoke also sought “additional clarity or guidance” regarding how to represent bond amounts in paragraphs 1.a. and 1.c. of FMC Form 48A when bonded U.S. office locations are involved.
Likewise, the comment “strongly endorses” FMC proposals to allow bond amounts to be aggregated. Fedex Trade Networks explains: “Allowing NVOCCs to meet the increased bond requirement by maintaining a bond of at least $125,000.00 would both fully satisfy the terms of the U.S.-China agreement and be more cost effective and efficient.”
In the 2003 Memorandum of Consultations between the U.S. and China, it was agreed that U.S. NVOCCs operating in the China trade would provide “evidence of financial responsibility in the total amount of Chinese Renminbi (RMB) 800,000 or U.S. $96,000.” The Memorandum of Consultations specifies amounts in both Chinese and United States currency, and did not provide for adjustment in exchange rates. Nevertheless, in recognition of the recent slight improvement in the value of the RMB against the U.S. Dollar (and in a spirit of comity and in conformity with Executive Order 13609,
The rule amends Appendix F to Subpart C of Part 515 (group bonds) to increase the amount specified from $21,000 to $50,000. In response to the comments the Commission received, the rule amends Appendix E to Subpart C of Part 515 (individual NVOCC bonds) to remove pre-specified rider amounts to account for variances in NVOCCs' combined total surety levels maintained to meet the Commission's other financial responsibility requirements, including $10,000 in bond coverage that NVOCCs maintain for each of their branch offices pursuant to 46 CFR 515.21(a)(4). This recognition means that NVOCCs with branch offices may have rider amounts that vary to satisfy the level of coverage requested by the PRC, so long as their total coverage equals $125,000.
The Commission intends to review the value of the total coverage provided by the optional China Bond Rider periodically.
Pursuant to 5 U.S.C. 605(b), and in response to comments regarding small businesses affected by this optional China Bond Rider, a Regulatory Flexibility Threshold Analysis has been performed; it has been determined that the final rule will not have a significant economic impact on a substantial number of small entities.
The small entities affected are ocean transportation intermediaries (OTIs). In determining whether a significant economic impact would occur under the new rule, the first estimate costs of the bond rider coverage were assessed. The economic impact of the optional China Bond Rider has been estimated to be less than $20 for every $1,000 of bond rider coverage, with most estimates being under $15 for every $1,000 of bond rider coverage. To that end, $21,000 of bond rider coverage would cost approximately $420.00 under this analysis. Given this information, it is determined that these first estimate costs are not significant to small entities. Uncertainty remains on the
To determine whether a substantial number of small entities would be affected, the OTI licensing statistics were reviewed. There are approximately 3,500 licensed U.S. OTIs that could file for the optional China Bond Rider; currently, only 350 OTIs have filed for the available optional China Bond Rider. This amounts to less than 10% of the entire market that may reasonably participate in the optional bond rider program. Based on this data, it is determined that a substantial number of small entities will not be affected by this rule.
It is important to note that the optional China Bond Rider is not an FMC-required bond; rather it is an alternative instrument crafted by the United States and China to relieve U.S. NVOCCs from the People's Republic of China's cash deposit requirement. The rule will not have a significant economic impact on a substantial number of small entities as outlined by the Regulatory Flexibility Threshold Act.
The Commission certifies this rulemaking because the proposed changes establish an optional provision for U.S. licensed NVOCCs, which may be used at their discretion. While some of these businesses qualify as small entities under the guidelines of the Small Business Administration, the rule provides a more cost-effective alternative than would otherwise be available to assist U.S. licensed NVOCCs with their business endeavors in the PRC. As such, the rule helps to promote U.S. business interests in the PRC and facilitate U.S. foreign commerce.
The Chairman of the Commission certifies, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 601
This rule is not a “major rule” under 5 U.S.C. 804(2).
The collection of information requirements contained in this rule have been submitted to the Office of Management and Budget for review under section 3504(h) of the Paperwork Reduction Act of 1980, as amended. Public reporting burden for this collection of information was estimated to be 1.25 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Freight, Maritime carriers, Non-vessel-operating common carriers.
For the reasons stated in the supplementary information, the Federal Maritime Commission amends 46 CFR Part 515 as follows.
5 U.S.C. 553; 31 U.S.C. 9701; 46 U.S.C. 305, 40102, 40104, 40501-40503, 40901-40904, 41101-41109, 41301-41302, 41305-41307; Pub. L. 105-383, 112 Stat. 3411; 21 U.S.C. 862.
The undersigned [______], as Principal and [______], as Surety do hereby agree that the existing Bond No. [____] to the United States of America and filed with the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 is modified as follows:
1. The following condition is added to this Bond:
a. An additional condition of this Bond is that $_____ (payable in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be available to pay any fines and penalties for activities in the U.S.-China trades imposed by the Ministry of Communications of the People's Republic of China (“MOC”) or its authorized competent communications department of the people's government of the province, autonomous region or municipality directly under the Central Government or the State Administration of Industry and Commerce pursuant to the Regulations of the People's Republic of China on International Maritime Transportation and the Implementing Rules of the Regulations of the PRC on International Maritime Transportation promulgated by MOC Decree No. 1, January 20, 2003.
b. The liability of the Surety shall not be discharged by any payment or succession of payments pursuant to section 1 of this Rider, unless and until the payment or payments shall aggregate the amount set forth in section 1a of this Rider. In no event shall the Surety's obligation under this Rider exceed the amount set forth in section 1a regardless of the number of claims.
c. The total amount of coverage available under this Bond and all of its riders, available pursuant to the terms of section 1(a.) of this rider, equals $____. The total amount of aggregate coverage equals or exceeds $125,000.
d. This Rider is effective the [____] day of [______], 20 [______], and shall continue in effect until discharged, terminated as herein provided, or upon termination of the Bond in accordance with the sixth paragraph of the Bond. The Principal or the Surety may at any time terminate this Rider by written notice to the Federal Maritime Commission at its offices in Washington, DC, accompanied by proof of transmission of notice to MOC. Such termination shall become effective thirty (30) days after receipt of said notice and proof of transmission by the Federal Maritime Commission. The Surety shall not be liable for fines or penalties imposed on the Principal after the expiration of the 30-day period but such termination shall not affect the liability of the Principal and Surety for any fine or penalty imposed prior to the date when said termination becomes effective.
2. This Bond remains in full force and effect according to its terms except as modified above.
In witness whereof we have hereunto set our hands and seals on this [____] day of [______], 20 [____],
1. * * *
a. An additional condition of this Bond is that $ [____](payable in U.S. Dollars or Renminbi Yuan at the option of the Surety) shall be available to any NVOCC enumerated in an Appendix to this Rider to pay any fines and penalties for activities in the U.S.-China trades imposed by the Ministry of Communications of the People's Republic of China (“MOC”) or its authorized competent communications department of the people's government of the province, autonomous region or municipality directly under the Central Government or the State Administration of Industry and Commerce pursuant to the Regulations of the People's Republic of China on International Maritime Transportation and the Implementing Rules of the Regulations of the PRC on International Maritime Transportation promulgated by MOC Decree No. 1, January 20, 2003. Such amount is separate and distinct from the bond amount set forth in the first paragraph of this Bond. Payment under this Rider shall not reduce the bond amount in the first paragraph of this Bond or affect its availability. The Surety shall indicate that $50,000 is available to pay such fines and penalties for each NVOCC listed on appendix A to this Rider wishing to exercise this option.
By the Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; emergency action.
NMFS issues this final temporary rule to establish management measures to allow for the limited harvest and possession of red snapper in or from the South Atlantic exclusive economic zone (EEZ) in 2012, as requested by the South Atlantic Fishery Management Council (Council). This rule also announces the opening and closing dates of the 2012 commercial and recreational fishing seasons for red snapper. The intended effect of this temporary rule is to preserve a significant economic opportunity in the South Atlantic snapper-grouper fishery that otherwise might be foregone. Furthermore, limited commercial and recreational harvest of red snapper in 2012 will provide an opportunity to collect fishery-dependent data that could be useful for the 2014 red snapper stock assessment.
This temporary rule is effective August 28, 2012 through December 31, 2012. The recreational red snapper season opens at 12:01 a.m., local time, on September 14, 2012, and closes at 12:01 a.m., local time, on September 17, 2012; then reopens at 12:01 a.m., local time, on September 21, 2012, and closes at 12:01 a.m., local time, on September 24, 2012. The commercial red snapper season opens at 12:01 a.m., local time, on September 17, 2012, and closes at 12:01 a.m., local time, on September 24, 2012.
Electronic copies of the documents in support of this temporary rule, which include an environmental assessment, may be obtained from the Southeast Regional Office Web site at
Rick DeVictor, Southeast Regional Office, NMFS, telephone: 727-824-5305, email:
NMFS and the Council manage South Atlantic snapper-grouper including red snapper under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal authority for the promulgation of emergency regulations under section 305(c) (16 U.S.C. 1855(c)).
Red snapper are overfished and undergoing overfishing. The harvest and possession of red snapper has been prohibited since January 4, 2010, initially through temporary rules (74 FR 63673, December 4, 2009 and 75 FR 27658, May 18, 2010), and then through the final rule to implement Amendment 17A to the FMP (75 FR 76874, December 9, 2010). Amendment 17A continued the prohibition on a permanent basis by implementing an annual catch limit (ACL) for red snapper of zero (landings only). Amendment 17A also implemented a rebuilding plan for red snapper, which specifies that red snapper biomass must increase to the target rebuilt level in 35 years, starting from 2010. The final rule implementing Amendment 17A also included a large area closure for most snapper-grouper species, however, this area closure did not become effective because it was determined not to be necessary to end the overfishing of red snapper (76 FR 23728, April 28, 2011). At its June 2012 meeting, the Council received new information regarding discard estimates for red snapper. Using this data, the Council and NMFS determined that a limited season for red snapper would be possible in 2012. Therefore, the Council voted, and NMFS is implementing, emergency rulemaking to allow for the limited harvest and possession of red snapper in or from the South Atlantic EEZ in 2012.
The most recent Southeast Data, Assessment, and Review (SEDAR) benchmark stock assessment for red snapper, SEDAR 24, was completed in October 2010. Much like the stock assessment completed in 2008, this assessment showed red snapper to be overfished and undergoing overfishing, but also showed that red snapper were undergoing overfishing at a lower rate than found in the 2008 stock assessment. The next benchmark stock
The Southeast Fisheries Science Center (SEFSC) has new discard data collected since the last benchmark assessment. The new data includes 2010 and 2011 discard estimates from commercial logbooks, the Marine Recreational Fisheries Statistical Survey (MRFSS) and the Southeast Headboat Survey. These data were used to evaluate red snapper discards in relation to the acceptable biological catch (ABC) adopted by the Council (using SEDAR 24 rebuilding projections) to determine if a limited harvest of red snapper can be allowed for snapper-grouper fishermen in 2012. Using the average of 2010 and 2011 estimated discard mortalities and the 2012 ABC, NMFS has determined that the estimated discard mortality level for 2012 is below the 2012 ABC. Therefore, a limited harvest and possession of red snapper is possible in 2012 while staying within the rebuilding plan. Based on the new discard estimates reviewed at its June 2012 meeting, the Council requested that NMFS promulgate emergency regulations to allow for the limited harvest and possession of red snapper in 2012. The Council voted to implement commercial and recreational management measures to ensure that only a limited amount of red snapper would be harvested and possessed and that this allowance would not prevent the stock from rebuilding to target levels within the specified timeframe.
NMFS' Policy Guidelines for the Use of Emergency Rules (62 FR 44421, August 21, 1997) list three criteria for determining whether an emergency exists and this temporary rule is promulgated under these criteria. Specifically, NMFS' policy guidelines require that an emergency:
(1) Result from recent, unforeseen events or recently discovered circumstances; and
(2) Present serious conservation or management problems in the fishery; and
(3) Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process.
The Council requested dead discard estimates from the SEFSC for 2010 and 2011, in anticipation of holding discussions during the June 2012 Council meeting to consider a limited reopening of red snapper. In a letter dated April 7, 2012, the Council asked for red snapper discard mortality estimates to compare to the previously projected mortality levels from the latest stock assessment. The discard estimates provided by the SEFSC from commercial logbooks, MRFSS, and the Southeast Headboat Survey constitute recently discovered circumstances. The ABC adopted by the Council from SEDAR 24 for 2012 is 86,000 fish. Red snapper harvest can only be allowed if projected mortalities from the harvest and release of fish are less than the ABC for that year. Using the average of 2010 and 2011 estimated mortalities and the 2012 ABC, NMFS estimates there will be 72,933 red snapper killed in 2012. Since the ABC for 2012 is 86,000 fish, the ABC is higher than the estimated discard mortalities for 2012. As a result, the Council and NMFS determined 13,067 red snapper may be harvested in or from the South Atlantic in 2012.
Input from the public and from a number of fishing communities indicates the harvest prohibition for red snapper has caused socio-economic harm to individuals and associated communities. Unnecessarily prolonging the harvest prohibition presents serious conservation and management problems in the snapper-grouper fishery. Therefore, implementing a limited commercial and recreational season will likely increase socioeconomic benefits for South Atlantic snapper-grouper fishermen. Increased fishing opportunities should provide direct benefits to fishermen in the form of additional income and recreational opportunities, in addition to indirect benefits to businesses that provide supplies for fishing trips. NMFS expects the 2012 fishing season revenues to commercial vessels will increase by about $86,000 (in total; 694 snapper-grouper permitted vessels may potentially participate in this harvest) and that benefits to the recreational anglers will increase by about $232,000 to $724,000 (in total; assuming that each of the 9,399 recreational fish is harvested by an individual angler). It is also likely that revenues and profits to for-hire vessels and support businesses will increase, but their magnitude cannot be estimated with the current information. Implementing the limited harvest of red snapper should also improve compliance and conservation as fishermen view management as being responsive to their needs and support this and other regulations. Additionally, a new stock assessment for red snapper has been delayed in order to gather more data. A limited commercial and recreational season for red snapper in 2012 will provide an opportunity to collect fishery-dependent data, including age composition and catch-per-unit-effort data that could be useful for and enhance the 2014 red snapper stock assessment.
The immediate benefits of implementing a limited commercial and recreational fishing season for red snapper in 2012 provide good cause to waive advance notice and public comment. A limited red snapper season should be implemented as soon as possible in 2012 so as not to open the season too late in the fishing year when poor weather can lead to unsafe fishing conditions. Comments on this action at the June 2012 Council meeting indicated that many fishermen favored a fall season. The U.S. Coast Guard advised that a red snapper opening in late 2012 could lead to unnecessary accidents from unsafe fishing conditions. The Council took all of this information into consideration when they requested a temporary rule for emergency action.
This temporary rule implements several management measures to authorize the limited harvest and possession of red snapper in or from the South Atlantic EEZ in the 2012 fishing year. The commercial annual catch limit (ACL) is set at 20,181 lb (9,443 kg), gutted weight, which is equal to the commercial quota, and the recreational ACL is set at 9,399 fish. These ACLs are based on the total ACL selected by the Council (13,097 fish), and the current allocation ratio for red snapper (28.07 percent commercial and 71.93 percent recreational). Accountability measures (AMs) are implemented to prevent these ACLs from being exceeded. NMFS and the Council are establishing several management measures that act as AMs, in order to constrain red snapper harvest to these ACLs. Limited commercial and recreational red snapper seasons are established for 2012. The recreational season will open for two consecutive weekends made up of Fridays, Saturdays, and Sundays and the commercial season will be open for 7 days, starting on the Monday following the first recreational weekend opening. The recreational season opens at 12:01 a.m., local time, on September 14, 2012, and closes at 12:01 a.m., local time, on September 17, 2012; then reopens at 12:01 a.m., local time, on September 21, 2012, and closes at 12:01 a.m., local time, on September 24, 2012.
This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c). The Assistant Administrator for Fisheries, NOAA (AA), has determined that this temporary rule is necessary to preserve a significant economic opportunity for South Atlantic snapper-grouper fishermen that otherwise would be foregone and is consistent with the Magnuson-Stevens Act and other applicable laws.
This temporary rule has been determined to be not significant for purposes of Executive Order 12866.
The AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because they are contrary to the public interest. This temporary rule preserves a significant economic opportunity for South Atlantic snapper-grouper fishermen that would otherwise be forgone. Limited harvest and possession of red snapper in 2012 will likely result in revenue increases to commercial vessels and benefit increases to recreational anglers, in addition to providing opportunity to for-hire vessels in booking more trips that could increase their revenues and profits. At the June 2012 Council meeting, South Atlantic snapper-grouper fishermen discussed the merits of opening red snapper in the South Atlantic for a limited time in 2012. Fishermen will be able to keep the red snapper that they are currently required to discard. Commercial fishermen should be able to increase their incomes in 2012 by about $86,000 (in total) by being able to sell a highly marketable fish for a limited time. Additionally, limited red snapper seasons will provide an opportunity to collect fishery-dependent data that will likely be useful for the 2014 red snapper stock assessment. Currently, the lack of available red snapper data hinders the ability to assess the status of the stock. Delaying the implementation of this rulemaking to provide prior notice and the opportunity for public comment would reduce the likelihood of opening the red snapper component of the snapper-grouper fishery in the early fall months when weather conditions are more favorable and fishing conditions are safer.
For these same reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the actions under 5 U.S.C. 553(d)(3).
Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.
For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:
16 U.S.C. 1801
(l)
(d) * * *
(1) * * *
(xi) Snappers, combined—10, of which no more than 1 may be red snapper. The 1-fish red snapper bag limit applies during the recreational red snapper season, specified in § 622.35(l). However, excluded from this 10-fish bag limit are cubera snapper, measuring 30 inches (76.2 cm), TL, or larger, in the South Atlantic off Florida, and vermilion snapper. (See § 622.32(c)(2) for limitations on cubera snapper measuring 30 inches (76.2 cm), TL, or larger, in or from the South Atlantic EEZ off Florida.)
(xii) South Atlantic snapper-grouper, combined—20. However, excluded from this 20-fish bag limit are tomtate, blue runner, and those specified in paragraphs (d)(1)(i) through (vii) and paragraphs (d)(1)(x) and (xi) of this section.
(c) * * *
(9)
(b) * * *
(25)
(ii)
Department of Energy, Office of Energy Efficiency and Renewable Energy.
Proposed rule; extension of public comment period.
This document announces that the period for submitting comments on the dehumidifier framework document is extended to October 17, 2012.
DOE will accept comments, data, and information on the dehumidifier framework received no later than October 17, 2012.
Any comments submitted must identify the dehumidifier framework document and provide docket number EERE-2012-BT-STD-0027. Comments may be submitted using any of the following methods:
•
•
•
•
Requests for additional information may be sent to Mr. Stephen L. Witkowski, 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: 202-586-7463. Email:
In the office of the General Counsel, contact Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Room 6A-179, Washington, DC 20585. Telephone: 202-586-7796; Email:
On August 17, 2012, DOE published a notice of availability of a framework document to consider energy conservation standards for dehumidifiers. (77 FR 49739) The notice provided for the submission of comments by September 17, 2012. Commenters stated that the public meeting was scheduled for September 24, 2012, and that the comment period should extend past the public meeting date. DOE has determined that an extension of the public comment period is appropriate for this reason and is hereby extending the comment period. DOE will consider any comments received by October 17, 2012.
Under 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 including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (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 has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which 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.
Defense Nuclear Facilities Safety Board.
Proposed rule; extension of comment period.
The Defense Nuclear Facilities Safety Board is extending the time for comments on its proposed rule, Procedures for Safety Investigations, which published July 27, 2012 in the
Comments are due by 5 p.m. September 26, 2012.
Submit comments to John G. Batherson, Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004. Send comments by facsimile to (202) 208-6518. Send comments by email to John G. Batherson at
John G. Batherson, Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue NW., Suite 700, Washington, DC 20004-2901, (202) 694-7018
The Defense Nuclear Facilities Safety Board is extending the comment period on the proposed rule, Procedures for Safety Investigations, because it has become aware of information which will best serve the public interest by extending the deadline for submission of comments for consideration by the Board. For this reason, the Board is extending the comment period to September 26, 2012.
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Airbus Model A318-112 airplane. This airplane as modified by Fokker Services B.V. will have a novel or unusual design feature associated with a cooktop installation. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before October 12, 2012.
Send comments identified by docket number FAA-2012-0699 using any of the following methods:
•
•
•
•
Dan Jacquet, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2676; facsimile 425-227-1100; email
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On January 12, 2010, Fokker Services B.V. applied for a supplemental type certificate for an interior conversion on an Airbus Model A318-112 airplane, serial number 3238. The Airbus Model A318-112 airplane is a large, transport-category airplane powered by two CFM56-5B9/P engines, with a basic maximum takeoff weight of 130,071 pounds.
Fokker Services B.V. is requesting certification to convert this Airbus Model A318-112 to a corporate jet, operating for both public and private use (not for hire, not for common carriage). For private use the aircraft will be certified for a maximum of 8 crew and 23 passengers, and the public use occupancy will be a maximum of 8 crew and 19 passengers. The aircraft will be subdivided into an entrance way, executive lounge, two private lounges, and a private bathroom. The entry will include the installation of two wet galleys. One of the galleys will include the installation of two combined cooktop pan units. The addition of a cooktop to this interior conversion can lead to hazards to both occupants and the aircraft. Special consideration is needed to address the safety standards associated with this installation.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101 Fokker Services B.V. must show that the Airbus Model A318-112 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A28NM are 14 CFR part 25, as amended by Amendments 25-1 through 25-56, with reversions to earlier amendments, voluntary compliance to later amendments, special conditions, equivalent safety findings, and exemptions listed in the type certificate data sheet.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318-112 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same or similar novel or unusual design feature, the special conditions would
In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318-112 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Airbus Model A318-112 airplane, serial number 3238, will incorporate the following novel or unusual design feature: Cooktops in the passenger cabin. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards to protect the airplane and its occupants from these potential hazards. The applicant's proposed system is considered to be a novel or unusual design feature.
Currently, ovens are the prevailing means of heating food on airplanes. Ovens are characterized by an enclosure that contains both the heat source and the food being heated. The hazards presented by ovens are thus inherently limited and are well understood through years of service experience. Cooktops, on the other hand, are characterized by exposed heat sources and the presence of relatively unrestrained hot cookware and heated food. These may represent unprecedented hazards to both occupants and the airplane.
Cooktops could have serious passenger and aircraft safety implications if appropriate requirements are not established for their installation and use. The requirements identified in these proposed special conditions are in addition to those considerations identified in Advisory Circular (AC) 20-168, Certification Guidance for Installation of Non-Essential, Non-Required Aircraft Cabin Systems and Equipment (CS&E), and those in AC 25-17A, Transport Airplane Cabin Interiors Crashworthiness Handbook. The intent of these proposed special conditions is to provide a level of safety that is consistent with that on similar aircraft without cooktops.
In similar cooktop installations, the FAA has required a deployable cover and a means to automatically shut off the power when the cover was in use. In lieu of these requirements, the cooktop installation in this Airbus A318-112 will have a lid and a timer that is not covered by the lid. The timer switches the heating elements on and off, has a maximum time of 20 minutes, and is still accessible when the lid is closed. The cabin crew will be instructed on its use. In addition to the lid and timer, the applicant will supply a fire blanket that is 1,100 by 1,100 mm (catalogue no. SAP-967-T). The fire blanket meets the requirements of British Standard BS 6575:1965. These specifications contain the requirements for flexibility, heat, electrical resistance, and fire extinguishing including cooking oil fires for light duty and heavy duty (industrial) applications.
For this cooktop installation, the FAA requires evidence that with the cooktop lid closed, the temperature set on “high,” and the timer at maximum, the cooktop will maintain safe operation and will not create a hazardous condition even with cooking oil in the cooktop.
As discussed above, these special conditions are applicable to the Airbus Model A318-112. Should Fokker Services B.V. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A28NM to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Airbus Model A318-112 airplane, serial number 3238, modified by Fokker Services B.V.
Cooktop installations with electrically powered burners must comply with the following criteria:
1. Means, such as conspicuous burner-on indicators, physical barriers, or handholds, must be installed to minimize the potential for inadvertent personnel contact with hot surfaces of both the cooktop and cookware. Conditions of turbulence must be considered.
2. Sufficient design means must be included to restrain cookware while in place on the cooktop, as well as representative contents, e.g., soup, sauces, etc., from the effects of flight loads and turbulence. Restraints must be provided to preclude hazardous movement of cookware and contents. These restraints must accommodate any cookware that is identified for use with the cooktop. Restraints must be designed to be easily utilized and effective in service. The cookware restraint system should also be designed so that it will not be easily disabled, thus rendering it unusable. Placarding must be installed which prohibits the use of cookware that cannot be accommodated by the restraint system.
3. Placarding must be installed that prohibits the use of cooktops (i.e., power on any burner) during taxi, takeoff, and landing.
4. Means must be provided to address the possibility of a fire occurring on or in the immediate vicinity of the cooktop. Two acceptable means of complying with this requirement are as follows:
a. Placarding must be installed that prohibits any burner from being powered when the cooktop is unattended, which would prohibit a single person from cooking on the cooktop and intermittently serving food to passengers while any burner is powered; a fire detector must be installed in the vicinity of the cooktop that provides an audible warning in the passenger cabin; and a fire extinguisher of appropriate size and extinguishing agent must be installed in the immediate vicinity of the cooktop. Access to the extinguisher must not be blocked by a fire on or around the cooktop. One of the fire extinguishers required by § 25.851 may be used to satisfy this requirement. If this is not possible, then the extinguisher in the galley area would be additional; or,
b. An automatic, thermally activated, fire-suppression system must be installed to extinguish a fire at the cooktop and immediately adjacent surfaces. The agent used in the system must be an approved, total-flooding agent suitable for use in an occupied area. The fire-suppression system must have a manual override. The automatic activation of the fire-suppression system must also automatically shut off power to the cooktop.
5. The surfaces of the galley surrounding the cooktop, which would be exposed to a fire on the cooktop surface or in cookware on the cooktop, must be constructed of materials that comply with the flammability requirements of 14 CFR part 25, appendix F, part III. This requirement is in addition to the flammability requirements typically required of the materials in these galley surfaces. During the selection of these materials, consideration must also be given to ensure that the flammability characteristics of the materials will not be adversely affected by the use of cleaning agents and utensils used to remove cooking stains.
6. The cooktop ventilation system ducting must be protected by a flame arrestor. In addition, procedures and time intervals must be established and included in the instructions for continued airworthiness to inspect and clean or replace the ventilation system to prevent a fire hazard from the accumulation of flammable oils. [Note: The applicant may find additional useful information in the Society of Automotive Engineers, Aerospace Recommended Practice 85, Rev. E, entitled, “Air Conditioning Systems for Subsonic Airplanes,” dated August 1, 1991.]
7. Means must be provided to contain spilled foods or fluids in a manner that prevents the creation of a slipping hazard to occupants, and that will not lead to the loss of structural strength due to corrosion.
8. Cooktop installations must provide adequate space for the user to immediately escape a hazardous cooktop condition.
9. A means to shut off power to the cooktop must be provided at the galley containing the cooktop and in the cockpit. If additional switches are introduced in the cockpit, revisions to smoke or fire emergency procedures of the airplane flight manual (AFM) will be required.
10. Cooktop installations must incorporate a timer that will switch the heating elements off after a maximum time of 20 minutes.
11. Instructions for the cabin crew to ensure safe operation of the cooktop lid and timer must be provided.
12. Evidence must be provided that with the cooktop lid closed, the temperature set on “high,” and the timer at maximum, the cooktop will maintain safe operation and will not create a hazardous condition even with cooking oil in the cooktop.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes. This proposed AD was prompted by reports of the loss of the fixed frequency system, leading to the loss of power to the left and right buses and all systems serviced by these buses. This proposed AD would require modification of the wiring and changes to existing airworthiness limitations. We are proposing this AD to prevent loss of the fixed frequency system, which could lead to loss of a number of the pilot's and co-pilot's flight instruments, in addition to other avionics systems.
We must receive comments on this proposed AD by October 12, 2012.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7301; fax (516) 794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-09, dated February 15, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
There have been several reported occurrences of the loss of the 400Hz [hertz] Fixed Frequency System, leading to the loss of power to the Left 115VAC [alternating current] bus, the Right 115VAC bus, the Left 26VAC bus, the Right 26VAC bus and all systems serviced by these four electrical buses. The loss of the 400Hz Fixed Frequency System has been attributed to a failure of one or two static inverters, which resulted in the loss of the remaining inverters. The loss of systems serviced by the four fixed frequency electrical buses creates an unsafe condition due to the loss of a number of the pilot's and co-pilot's flight instruments, in addition to the other avionics systems.
This [Canadian] Airworthiness Directive (AD) mandates the wiring modification to untie the 400Hz inverters and additional Airworthiness Limitation tasks introduced as a result of this modification.
Bombardier has issued the following service information:
• Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012;
• de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
• de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7; and
• de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Based on the service information, we estimate that this proposed AD would affect about 94 products of U.S. registry. We also estimate that it would take about 9 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $71,910, or $765 per product.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
We must receive comments by October 12, 2012.
None.
(1) This AD applies to Bombardier, Inc. Model DHC-8-102, -103, -106, -201, -202, -301, -311, and -315 airplanes, certificated in any category, serial numbers 002 through 672 inclusive.
(2) This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these actions, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (k)(1) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.
Air Transport Association (ATA) of America Code 24; Electrical Power.
This AD was prompted by reports of the loss of the fixed frequency system, leading to the loss of power to the left and right buses and all systems serviced by these buses. We are issuing this AD to prevent loss of the fixed frequency system, which could lead to loss of a number of the pilot's and co-pilot's flight instruments, in addition to other avionics systems.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first: Incorporate the wiring modifications specified in and in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012.
Within 30 days after the effective date of this AD: Revise the airplane maintenance program by incorporating Task 2420/13, Operational Check of Relays K4, K5, K6, and K7 (Post Modsum 8Q101917), in the applicable temporary revision specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD. The initial compliance time for Task 2420/13 is within 18,000 flight hours after accomplishing the actions specified in paragraph (g) of this AD, or 30 days after the effective date of this AD, whichever occurs later.
(1) For Model DHC-8-102, -103, and -106 airplanes: de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
(2) For Model DHC-8-201 and -202 airplanes: de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7.
(3) For Model DHC-8-301, -311, and -315 airplanes: de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (e.g., inspections) or intervals may be used, unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in paragraph (k)(1) of this AD.
This paragraph provides credit for the actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 8-24-87, dated May 26, 2011; or Bombardier Service Bulletin 8-24-87, Revision A, dated October 5, 2011.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to MCAI Canadian Airworthiness Directive CF-2012-09, dated February 15, 2012, and the service information specified in paragraphs (l)(1)(i) through (l)(1)(iv) of this AD, for related information.
(i) Bombardier Service Bulletin 8-24-87, Revision B, dated April 3, 2012.
(ii) de Havilland Dash 8 Series 100 Temporary Revision AWL-117, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 100 Maintenance Program Manual, PSM 1-8-7.
(iii) de Havilland Dash 8 Series 200 Temporary Revision AWL 2-48, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 200 Maintenance Program Manual, PSM 1-82-7.
(iv) de Havilland Dash 8 Series 300 Temporary Revision AWL 3-118, dated April 8, 2011, to Section AWL—Systems Maintenance, of Part 2, Airworthiness Limitations, of the Bombardier Dash 8 Series 300 Maintenance Program Manual, PSM 1-83-7.
(2) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Proposed policy; implementation of Section 136; opportunity to comment; correction and extension of time to comment.
The FAA is correcting an inadvertent omission in the Addresses paragraph in the Proposed Policy Regarding Access to Airports From Residential Property that was published in the
The comment period for the proposed policy document published July 30, 2012 (77 FR 44515), is extended to September 14, 2012.
Randall S. Fiertz, telephone: (202) 267-3085; facsimile: (202) 267-5257; email:
On July 30, 2012, the Federal Aviation Administration published a Notice of Proposed Policy in the
There was an inadvertent omission in the Notice which FAA is correcting through this amendment. In the Addresses paragraph, the FAA inadvertently omitted the applicable Department of Transportation Docket Number.
In the document published on July 30, 2012 (77 FR 44515) FR Doc. 2010-18058, on page 44515 in column 3, under the heading
The Experimental Aircraft Association requested the FAA extend the comment period an additional two weeks. The FAA believes this is a reasonable request and hereby extends the comment period to September 14, 2012.
Office of the Secretary, Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA) of the Department of Health and Human Services (HHS) will be implementing a new system of records, 09-10-0020, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.” HHS/FDA proposes to exempt this system of records from certain requirements of the Privacy Act to protect the integrity of FDA's scientific misconduct inquiries and investigations and to protect the identity of confidential sources in such investigations.
Submit either electronic or written comments by November 13, 2012. If HHS/FDA receives any significant adverse comments, the Agency will publish a document withdrawing the direct final rule within 30 days after the comment period ends. HHS/FDA will then proceed to respond to comments under this proposed rule using the usual notice and comment procedures.
You may submit comments, identified by Docket No. FDA-2011-N-0252, by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier (For paper or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Frederick Sadler, Division of Freedom of Information, Office of Public Information & Library Services, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 301-796-8975,
FDA is implementing a new system of records called the “FDA Records Related to Research Misconduct Proceedings.” The purpose of this system of records is to implement FDA's responsibilities for addressing research integrity and misconduct, in accordance with the Public Health Service (PHS) Policies on Research Misconduct (42 CFR part 93), for research performed by persons who are FDA employees, agents of the Agency, or who are affiliated with the Agency by contract or agreement. The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” (42 CFR 93.100(a)). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as the suspension of a contract, debarment, or an adverse personnel action against a Federal employee (42 CFR 93.407). In addition, under 42 CFR 93.401, FDA shall at any time during a research misconduct proceeding notify HHS' Office of Research Integrity (ORI) immediately to ensure that FDA's Office of Criminal Investigations, HHS Office of Inspector General, the Department of Justice, or other appropriate law enforcement Agencies, are notified if there is a reasonable indication of possible violations of civil or criminal law.
FDA's new system of records will be modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OPHS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 75 FR 44847, August 31, 2009).
FDA's scientific misconduct inquiry and investigation records are located in the Office of the Chief Scientist in FDA's Office of the Commissioner. FDA is preparing to organize and operate these records as a “system of records” as that term is defined by the Privacy Act. FDA is publishing a System of Records Notice (SORN) for this system in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Privacy Act permits certain types of systems to be exempt
As stated previously in this document, FDA may take administrative action in response to a research misconduct proceeding and, where there is a reasonable indication that a civil or criminal fraud may have taken place, will refer the matter to the appropriate investigative body. As such, FDA scientific misconduct inquiry and investigative files are records compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of records. Moreover, where misconduct inquiry and investigative files are compiled solely for the purpose of making determinations as to the suitability for appointment as special Government employees or eligibility for Federal contracts from PHS Agencies, the subsection (k)(5) exemption is applicable.
HHS/FDA is therefore proposing to exempt this system under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access and amendment provisions of the Act (subsections (c)(3), (d)(1) to (d)(4), (e)(4)(G) and (e)(4)(H), and (f)). As described in the following paragraphs, the exemptions are necessary in order to maintain the integrity of the research misconduct proceedings and to ensure that FDA's efforts to obtain accurate and objective information will not be hindered. However, consideration would be given to requests for notification, access, and amendment that are addressed to FDA's Research Integrity Officer (System Manager) or Privacy Act Coordinator. The specific rationales for applying each of these exemptions are as follows:
•
•
•
•
•
As stated previously in this document, FDA's new system of records will be modeled after the system of records maintained by ORI. ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, access, accounting, and amendment provisions of the Privacy Act, to ensure that these records will not be disclosed inappropriately (59 FR 36717, July 19, 1994). Likewise, FDA believes that exempting the new system, “FDA Records Related to Research Misconduct Proceedings, HHS/FDA,” from the same Privacy Act provisions is essential to ensure that material in FDA's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/FDA from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
This proposed rule is a companion to the direct final rule published in the final rules section of this issue of the
A significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. In determining whether an adverse comment is significant and warrants terminating a direct final rulemaking, we will consider whether the comment
If no significant adverse comment is received in response to the direct final rule, no further action will be taken related to this companion proposed rule. Instead, we will publish a document confirming the effective date within 30 days after the comment period ends, and we intend the direct final rule to become effective 30 days after publication of the confirmation notice.
If FDA receives any significant adverse comments, the Agency will withdraw the direct final rule within 30 days after the comment period ends and proceed to respond to all of the comments under this companion proposed rule using usual notice-and-comment rulemaking procedures. The Agency will address the comments in a subsequent final rule.
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
HHS/FDA has examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this proposed rule is not a significant regulatory action under Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the proposed rule imposes no duties or obligations on small entities, the Agency proposes to certify that the final rule would not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.
Interested persons may submit to the Division of Dockets Management (see
Privacy.
Privacy.
Therefore, the Department of Health and Human Services is proposing to amend 21 CFR part 21 and 45 CFR part 5b to read as follows:
1. The authority citation for 21 CFR part 21 continues to read as follows:
21 U.S.C. 371; 5 U.S.C. 552, 552a.
2. Section 21.61 is amended by adding paragraph (d) to read as follows:
(d) Records in the following Food and Drug Administration Privacy Act Records Systems are exempt under 5 U.S.C. 552a(k)(2) and (k)(5) from the provisions enumerated in paragraph (a)(1) through paragraph (a)(3) of this section: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09-10-0020.
3. The authority citation for 45 CFR part 5b continues to read as follows:
5 U.S.C. 301, 5 U.S.C. 552a.
4. Section 5b.11 is amended by adding paragraph (b)(2)(vii)(C) to read as follows:
(b) * * *
(2) * * *
(vii) * * *
(C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to temporarily change the enforcement period of special local regulations for one recurring marine event in the Fifth Coast Guard District. This event is the Poquoson Seafood Festival Workboat Race, which includes a series of boat races to be held on the waters of Back River, Poquoson, Virginia. These special local regulations are necessary to provide for the safety of life on navigable waters during the events. This action is intended to restrict vessel traffic during the power boat races on the Back River in the vicinity of Messick Point, in Poquoson, Virginia.
Comments and related material must be received by the Coast Guard on or before September 15, 2012.
You may submit comments identified by docket number USCG-2012-0594 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Hector Cintron, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757-668-5581, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
This rule involves an annually occurring marine event that takes place on the 2nd Sunday in October, as published in table to 33 CFR 100.501. The City of Poquoson has requested that the enforcement dates be changed for this year's event.
The City of Poquoson sponsors an annual workboat race which takes place on the navigable waters of the Back River in Poquoson, Virginia. This event occurs in connection with the city's annual seafood festival. A special local regulation is effective annually to create a safety zone for the workboat races.
The regulation listing annual marine events within the Fifth Coast Guard District and corresponding dates is 33 CFR 100.501. The Table to § 100.501 identifies marine events by Captain of the Port zone. This particular marine event is listed in section (c.), line No. 19 of the table.
The current regulation described in section (c.) line No. 19 of the table indicates that the workboat race event should take place this year on October 7, 2012 (the Second Sunday in October). This regulation proposes to change the date for the event to take place on September 30, 2012 for this year only.
A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area. The regulated area as described in 33 CFR 100.501 will be enforced from 1 p.m. to 4 p.m. September 30, 2012, or, in the case of inclement weather, from 1 p.m. to 4
The Coast Guard proposes to temporarily suspend the regulation listed at section (c.) line No. 19 in the Table to § 100.501 and insert this new temporary regulation at the Table to § 100.501 line No. 25 in order to reflect the change of date for this year's event. This change is needed to accommodate the change in date of the annual Seafood Festival Workboat Race Event. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.
This special local regulation will restrict vessel movement in the regulated area during the marine event. The regulated area is needed to control vessel traffic and enhance the safety of participants and spectators of the Poquoson Seafood Festival Workboat Race. The regulation will be enforced from 1 p.m. to 4 p.m. on September 30, 2012 or if necessary due to inclement weather from 1 p.m. to 4 p.m. on October 7, 2012. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the effective period.
In addition to notice in the
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
Although this rule prevents traffic from transiting a portion of certain waterways during specified events, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR § 100.501, Table to § 100.501.
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.
The rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this section of the Back River during the event from 1 p.m. to 4 p.m. on September 30, 2012.
Although this regulation prevents traffic from transiting a portion of the Back River during the event, this rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule will not call for a 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 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. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not 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 proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 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.
This proposed 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 which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. In § 100.501, in the Table to § 100.501, temporarily suspend line (c)19.
3. In § 100.501, in the Table to § 100.510, add temporary line 23 to read as follows:
Department of Health and Human Services.
Notice of proposed rulemaking.
The Department of Health and Human Services (HHS or Department), through the National Institutes of Health (NIH), is implementing a new system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH.” HHS is exempting this system of records from certain requirements of the Privacy Act to protect the integrity of NIH research misconduct proceedings and to protect the identity of confidential sources in
Submit either electronic or written comments by November 13, 2012. If HHS/NIH receives any significant adverse comments, the agency will publish withdrawing the direct final rule within 30 days after the comment period ends. HHS/NIH will then proceed to respond to comments under this proposed rule using the usual notice and comment procedures.
You may submit comments, identified by [Docket No(s).], by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
•
•
To ensure a more timely processing of comments, HHS/NIH is no longer accepting comments submitted to the agency by email. HHS/NIH encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the
Jerry Moore, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, MD 20852-7669, telephone 301-496-4607, fax 301-402-0169, email
NIH is implementing a new system of records called, “NIH Records Related to Research Misconduct Proceedings” (09-25-0223). This system of records is part of NIH's implementation of its responsibilities under the Public Health Service (PHS) Policies on Research Misconduct, 42 CFR part 93. The system notice applies to alleged or actual research misconduct involving research: (1) Carried out in NIH facilities by any person; (2) funded by the NIH Intramural Research Program (IRP) in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. A person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH, is covered by the system if, for example, he or she is involved in: (1) NIH- or PHS-supported biomedical or behavioral research; (2) NIH- or PHS-supported biomedical or behavioral research training programs; (3) NIH- or PHS-supported activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; (4) plagiarism of research records produced in the course of NIH- or PHS-supported research, research training or activities related to that research or research training; or (5) an application or proposal for NIH or PHS support for biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information (regardless of whether it is approved or funded).
The term “research misconduct” is defined at 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The general policy of the PHS Policies on Research Misconduct is that “Research misconduct involving PHS support is contrary to the interests of the PHS and the Federal government and to the health and safety of the public, to the integrity of research, and to the conservation of public funds.” 42 CFR 93.100(a). The PHS Policies on Research Misconduct provide for a number of HHS administrative actions that can be taken in response to a research misconduct proceeding, such as an adverse personnel action against a federal employee, the suspension of a contract, or debarment. 42 CFR 93.407. In addition, pursuant to 42 CFR 93.318 and 93.401, NIH shall at any time during a research misconduct proceeding notify the HHS Office of Research Integrity (ORI) immediately to ensure that NIH's Office of Management Assessment, HHS' Office of Inspector General, the Department of Justice, or other appropriate law enforcement agencies are notified and consulted, if there is a reasonable indication of possible violations of civil or criminal law that may involve such offices.
NIH's system of records is modeled after the system of records maintained by ORI, entitled “HHS Records Related to Research Misconduct Proceedings, HHS/OS/ORI” System No. 09-37-0021 (59 FR 36717, July 19, 1994; revised most recently at 74 FR 44847, Aug. 31, 2009).
NIH's records related to research misconduct proceedings are located in the Office of Intramural Research in NIH's Office of the Director. NIH is updating its organization and operation of these records, to be exempt from Privacy Act requirements, as provided in the direct final rule and in a new “System of Records Notice” which NIH is publishing in the
Under the Privacy Act (5 U.S.C. 552a), individuals have a right of access to information pertaining to them which is contained in a system of records. At the same time, the Act permits certain types of systems to be exempt from some of the Privacy Act requirements, including the access requirement. For example, section 552a(k)(2) allows agency heads to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes. This exemption's effect on the access requirement is qualified in that if the maintenance of the material results in the denial of any right, privilege, or benefit that the individual would be otherwise entitled to by Federal law, the
As stated above, NIH may take administrative action in response to a research misconduct proceeding and, where a civil or criminal fraud may have taken place, NIH may refer the matter to the appropriate investigative body. As such, NIH's records related to research misconduct proceedings are compiled for law enforcement purposes, and the subsection (k)(2) exemption is applicable to this system of record. Moreover, where records related to research misconduct proceedings are compiled solely for the purpose of making determinations as to the suitability for appointment as special government employees or eligibility for Federal contracts from PHS agencies, the subsection (k)(5) exemption is applicable.
Exempting the system from Privacy Act provisions pertaining to providing an accounting of disclosures, access and amendment, notification, and procedures and rules is necessary to maintain the integrity of the research misconduct proceedings and to ensure that the NIH's efforts to obtain accurate and objective information will not be hindered.
Accordingly, HHS/NIH is exempting this system under subsections (k)(2) and (k)(5) of the Privacy Act from the accounting, access, and amendment, notification and procedures and rules provisions of the Privacy Act (paragraphs (c)(3), (d)(1)-(4), (e)(4)(G) and (H), and (f)) for the reasons stated below. However, consideration will be given to requests for notification, access, and amendment that are addressed to the System Manager. The specific rationale for exempting the system from each of these provisions is as follows:
• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures is needed during the pendency of a research misconduct proceeding. Release of an accounting of disclosures to an individual who is the subject of a pending research misconduct assessment, inquiry or investigation could prematurely reveal the nature and scope of the assessment, inquiry or investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (d)(1). An exemption from the access requirement is needed both during and after a research misconduct proceeding, to avoid revealing the identity of any source who was expressly promised confidentiality. Only material that would reveal a confidential source will be exempt from access. Protecting the identity of a source is necessary when the source is unwilling to come forward and report possible research misconduct because of fear of retaliation (e.g., from an employee or co-worker).
• Subsections (d)(2) through (d)(4). An exemption from the amendment provisions is necessary while one or more related research misconduct proceedings are pending. Allowing amendment of investigative records in a pending proceeding could interfere with that proceeding; even after that proceeding is concluded, an amendment could interfere with other pending or prospective research misconduct proceedings, or could significantly delay inquiries or investigations in an attempt to resolve questions of accuracy, relevance, timeliness, and completeness.
• Subsections (e)(4)(G) and (H). An exemption from the notification provisions is necessary during the pendency of a research misconduct proceeding, because notifying an individual who is the subject of an assessment, inquiry, or investigation of the fact of such proceedings could prematurely reveal the nature and scope of the proceedings in a manner that could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the proceeding.
• Subsection (f). An exemption from this requirement to establish procedures for notification, access to records, amendment of records, or appeals of denials of access to records, is necessary because the procedures would serve no purpose in light of the other exemptions, to the extent that those exemptions apply.
As stated above, NIH's system of records is modeled after the system of records maintained by HHS' Office of Research Integrity (ORI). ORI has exempted these records under subsections (k)(2) and (k)(5) of the Privacy Act from the notification, accounting, access, and amendment provisions of the Privacy Act, to ensure that these investigative files will not be disclosed inappropriately [59 FR 36717 (July 19, 1994)]. Likewise, NIH believes that exempting the new system, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH,” from the Privacy Act provisions is essential to ensure that material in NIH's files related to research misconduct proceedings is not disclosed inappropriately. Except for information that would reveal the identity of a source who was expressly promised confidentiality, the access exemption will not prohibit HHS/NIH from granting respondents' access requests consistent with the PHS Policies on Research Misconduct (42 CFR Part 93), including in those cases in which a finding of research misconduct has become final and an administrative action has been imposed.
HHS/NIH has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The agency believes that the final rule is not a significant regulatory action under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule imposes no duties or obligations on small entities, the agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136
Privacy.
For the reasons set out in the preamble, the Department proposes to amend its Privacy Act Regulations, Part 5b of 45 CFR Subtitle A, as follows:
1. The authority citation for Part 5b continues to read as follows:
5 U.S.C. 301, 5 U.S.C. 552a.
2. In § 5b.11, add paragraph (b)(2)(vii)(D) to read as follows:
(b) * * *
(2) * * *
(vii) * * *
(D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09-25-0223.
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to update instructions for assigning basic and supplementary procurement instrument identification numbers.
Comments on the proposed rule should be submitted in writing to the address shown below on or before October 29, 2012, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2012-D040, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Veronica Fallon, telephone 571-372-6087.
DoD is proposing to revise the DFARS to eliminate the requirement to utilize an “F” in the 9th position of the procurement instrument identification number (PIIN) to identify awards to certain vendors, including AbilityOne and Federal Prison Industries (UNICOR), and to other Government organizations. These vendors are uniquely identified today by their DUNS number and/or CAGE code and, therefore, associated contract actions are easily tracked. There is no longer any need for DoD to uniquely identify contract actions with these vendors. Under the proposed rule, contract actions with these vendors will be treated and identified in the same manner as those with any other vendor. This change proposes to limit the use of “F” in the 9th position of the PIIN to those task and delivery orders issued under a non-DoD issued contract or agreement. It is anticipated that this proposed change, which further standardizes DoD procedures, will also reduce data errors and interoperability problems throughout the Department's business processes.
DoD is proposing the following changes to the DFARS:
• Revise 204.7003, Basic PII number, paragraph (a)(3), Position 9, by—
Executive Orders (E.O.s) 12866 and 13563 direct 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and
DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This proposed rule would affect how DoD contracting officers assign Procurement Instrument Identification Numbers (PIINs) to procurement actions. The proposed rule does not impact small entities as it only impacts the internal operating procedures of the Government by specifying how the assigned PIIN is constructed for certain procurement actions. This change would limit the use of “F” in the 9th position to those calls or orders issued under non-DoD issued contracts, basic ordering agreements, or blanket purchase agreements. As a result of the proposed rule, new awards under the AbilityOne program and the Federal Prison Industries program would no longer reflect an “F” in the PIIN.
The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no significant alternatives to accomplish the stated objectives of this rule. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2012-D040) in the correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 204 is proposed to be amended as follows:
1. The authority citation for 48 CFR part 204 continues to read as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
2. Section 204.7003(a)(3) is amended by revising paragraphs (iii) and (vi) to read as follows:
(a) * * *
(3) * * *
(iii) Contracts of all types except indefinite-delivery contracts, sales contracts, and short form research contracts. Do not use this code for contracts or agreements with provisions for orders or calls—C
(vi) Calls against blanket purchase agreements and orders under contracts (including Federal Supply Schedules, Governmentwide acquisition contracts, and multi-agency contracts) and basic ordering agreements issued by departments or agencies outside DoD. Do not use the F designation on DoD-issued purchase orders, contracts, agreements, or orders placed under DoD-issued contracts or agreements—F
3. Section 204.7004(d)(2) is amended by revising paragraph (ii) to read as follows:
(d) * * *
(2) * * *
(ii) If an office is placing calls against blanket purchase agreements or orders under non-DoD issued contracts (including Federal Supply Schedules, Governmentwide acquisition contracts, and multi-agency contracts), or basic ordering agreements, the office shall identify the instrument with a 13 position supplementary PII number using an F in the 9th position. Do not use the same supplementary PII number with an F in the 9th position on more than one order. Modifications to these calls or orders shall be numbered in accordance with paragraph (c) of this section.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the Bay skipper (
The finding announced in this document was made on August 28, 2012.
This finding is available on the Internet at
Stephen Ricks, Mississippi Field Office (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
The Bay skipper was identified as a candidate for protection under the Act in the November 21, 1991,
On January 4, 2010, we received a petition dated December 29, 2009, from WildEarth Guardians and Xerces Society for Invertebrate Conservation requesting that the Bay skipper be listed as an endangered or threatened species and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In a January 25, 2010, letter to the petitioners, we acknowledged receipt of the petition, and stated that due to prior workload and limited funding, we would not be able to address the petition at that time, but would complete the action when workload and funding allowed. On May 6, 2010, we received a 60-day notice of intent (NOI) to sue under the provisions of the Act from petitioners for our alleged failure to make a finding within 90 days of receipt of the petition. In a June 11, 2010, letter to the petitioners, we acknowledged receipt of the NOI and stated that a publication date for the 90-day finding could not be predicted at that time. Funding became available during fiscal year 2011, and on July 12, 2011, we published a 90-day finding (76 FR 40868) that the petition presented substantial scientific or commercial information indicating that listing this species may be warranted, and requested scientific and commercial data and other information regarding this species. This notice constitutes the 12-month finding on the January 4, 2010, petition to list the Bay skipper as an endangered species.
The Bay skipper, a small butterfly, was described as
The Bay skipper has a wingspan of 1.5 to 1.75 inches (in) (3.7 to 4.4 centimeters (cm)). Males are black with a large orange patch on the top of the wings, and have a prominent black stigma (defined mark) on the forewing. The females are dark brown with yellow spots on their forewing and a yellow streak on their hindwing. The ventral (bottom) sides of both front and hind wings of the females are a shade of brown that is paler than the dorsal (upper) side, and have pale yellow spots on the forewing, with two yellow streaks from the base to the margin (Shuey 1989, p. 165; Vaughan and Shepherd 2005, pp. 1-2; Butterflies and Moths of North America (BMNA) 2009, p. 1). The Bay skipper is similar in appearance to the Dion skipper (
The life history and habitat requirements of the Bay skipper are poorly known. Bay skippers appear to have two major flight periods (late spring and fall), and the potential to produce two generations per year. The gap between the flight periods suggests that the larvae produced during the spring flight period may aestivate (become dormant) in the summer. The species may overwinter (hibernate) in the larval form. Aestivating and hibernating larvae are probably in the third or fourth instar (period between molts) (Vaughan and Shepherd 2005, p. 2).
Bay skippers have been observed only in association with estuarine herbaceous marsh, including brackish and freshwater marshes. The larval food plant is unknown, but
Until recently, the Bay skipper was considered to occur in only two locations: Bay St. Louis, Hancock County, Mississippi, and the Anahuac National Wildlife Refuge (NWR) (part of the Texas Chenier Plains NWR Complex), Chambers and Jefferson Counties, Texas. The lack of records suggested that the species had a very limited range and was very rare (Vaughan and Shepherd 2005, p. 2; NatureServe 2009, 2011). The Bay St. Louis locality was severely damaged by Hurricane Katrina in 2005, and it was unknown if the species continued to survive in that locality. The Anahuac NWR and surrounding areas were inundated by Hurricane Ike in 2008, and no Bay skippers had since been reported at that location (NatureServe 2011, WildEarth Guardians and Xerces Society for Invertebrate Conservation 2009, p. 9).
As part of the status review following the 90-day finding, we contacted lepidopterists along the Gulf Coast for additional records, photographs, specimens, and other information on the distribution and abundance of the Bay skipper. We also conducted a 1-week survey for the Bay skipper at the two known localities, and other potentially suitable habitat along the Gulf Coast between Galveston Bay, Texas, and Sandestin, Florida (Salvato 2011 pp. 1-28). No Bay skippers were found on the Anahuac NWR, or at the type locality in Bay St. Louis. However, we were able to identify seven additional localities where Bay skippers have been recently sighted, two in Texas and five in Cameron Parish, Louisiana. These new
Our survey and our review of the best available scientific and commercial information demonstrates that efforts to document the Bay skipper have been limited and localized, and the Bay skipper is more widely distributed than previously believed (Salvato 2011, pp. 1-14; Marks 2011a, pp. 92-94). It is likely that additional populations occur along the Gulf Coast, as extensive and apparently suitable estuarine marsh habitats with appropriate nectar and potential host plants were observed at numerous sites on both public and private lands (Salvato 2011, pp. 1-14). Within the currently known range of the Bay skipper (East Texas to Mississippi), there are 10 national wildlife refuges, seven State wildlife refuges, two State parks, one State wetland conservation area, and one national park that contain, protect, and manage for estuarine marsh habitats known to be occupied, or potentially occupied, by the species. Extensive areas of privately owned estuarine marsh habitats are also present, and such habitats are not conducive to development, farming, or other land use practices potentially detrimental to Bay skipper habitat.
Section 4 of the Act and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be an endangered or threatened species based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making this finding, information pertaining to the Bay skipper in relation to the five factors provided in section 4(a)(1) of the Act is discussed below. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species warrants listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of a threatened or endangered species under the Act.
In making our 12-month finding on the petition, we considered and evaluated the best available scientific and commercial information.
Until recently, the Bay skipper was recognized as occurring in only two localized areas: Bay St. Louis, Mississippi, and the Anahuac NWR, Texas (e.g., Vaughan and Shepherd 2005, pp. 1-2; NatureServe 2011). Habitat for the Bay St. Louis, Mississippi, population of the Bay skipper was severely damaged by Hurricane Katrina in 2005, and the Anahuac NWR, Texas, population was inundated by Hurricane Ike in 2008. There was concern that one or both of these populations of the Bay skipper might have been extirpated due to habitat loss or modification by the hurricane activity (WildEarth Guardians and Xerces Society for Invertebrate Conservation 2009, p. 9), and there was additional concern that the species could be extinct.
Given these concerns, we conducted a 1-week survey that included the historical occurrence locations, as well as multiple points in between, during a week of the September 2011 flight period (Salvato 2011, pp. 1-28). This limited survey failed to locate the species at either of the previously occupied locations of Bay St. Louis, Mississippi, or Anahuac NWR, Texas. However, only a few hours were spent searching each of the historical locations, thus neither the continued presence nor the extirpation of the species from these two sites could be confirmed, as habitat at both locations appeared to be suitable to sustain the species (Salvato 2011, pp. 5-6, 11). As discussed above, the survey did confirm seven extant site locations of the Bay skipper in Chambers and Jefferson Counties, Texas, and in Cameron Parish, Louisiana (Gatrelle 2000, p. 4; Wauer 2006; Marks 2011a, pp. 92-94; Salvato 2011, pp. 1-14).
Although all of the site locations are known to have experienced one or more severe storm events by recent hurricanes (i.e., Hurricane Katrina 2005, Hurricane Rita 2005, Hurricane Gustav 2008, Hurricane Ike 2008), the Bay skipper continues to persist at the 7 newly confirmed locations. The Bay skipper is endemic to, and adapted to, estuarine marsh habitats. Such habitats in the northern Gulf of Mexico are frequently subject to tropical storms and hurricanes, and the area has experienced an increase in storm activity (Goldenberg
Researchers studying butterfly community response to hurricane and tropical storm events have documented local species declines and extirpations; however, this research has also found that those butterfly species most closely associated with the local vegetation survived and rapidly recovered from periodic storm impacts (Salvato and Salvato 2007, p. 160). Others recovered more gradually. For example, although the endangered Miami blue butterfly (
Estuarine plant species that are considered to be utilized by Bay skipper larvae include sawgrass, reeds, and bulrush (Salvato 2011, pp. 1-14). Adult Bay skippers have been observed
There are concerns that Bay skipper habitats could be negatively affected by sea level rise (WildEarth Guardians and Xerces Society for Invertebrate Conservation 2009, p. 9), and that impacts from storm events could be compounded by projected sea level rise (Karl
During our survey, five of the seven newly recognized butterfly locations were found in Louisiana estuarine marshes. Coastal Louisiana contains the largest estuarine herbaceous marsh in the United States; however, it is also experiencing the highest rate of wetland loss in the country (Couvillion
There is no available information supporting concerns that land management actions (e.g., livestock grazing, rice farming, land management involving conventional farm machinery, prescribed fires, herbicide use, water control) (WildEarth Guardians and Xerxes Society 2009, pp. 10-11) are negatively affecting the Bay skipper. Estuarine marsh habitats where the Bay skipper have been identified are low-elevation herbaceous wetlands not suitable or utilized directly for grazing or farming, and are generally not subject to impacts by conventional farm machinery. Marshes may be periodically burned; however, fire is a natural component of the estuarine ecosystem, and managed fires are localized, seasonal, and beneficial to Bay skipper estuarine marsh habitats. Due to their low elevations and lack of agricultural potential, estuarine ecosystems are generally not subject to herbicide or pesticide use. As noted in the Background, above, there are multiple State or Federal refuges and protected areas that are managed for estuarine biodiversity. Herbicide and pesticide use in such areas is either restricted or closely managed. For example, on the Anahuac National Wildlife Refuge, herbicides are used only to combat exotic plant species (Cooper, pers. comm. 2010). While highway right-of-ways may be periodically subject to herbicide control measures, this would seasonally affect only a small proportion of the nectaring plants available to butterflies in any given area.
Following the severe impacts of Hurricanes Katrina and Rita in 2005, the Coastal Protection and Restoration Authority (CPRA) was established by the Louisiana legislature to work with other State agencies, Federal agencies, private industries, and other nongovernmental entities. One of their primary goals is to conserve and restore Louisiana coastal wetlands and their role in hurricane protection. Since 2005, over 200 restoration and protection projects have been constructed, are in progress, or are proposed (CPRA 2012, pp. 22-25). Projects that protect, enhance, or restore estuarine herbaceous marshes include water and sediment diversions, marsh nourishment, marsh creation, shoreline protection, and hydrologic restoration (CPRA 2012, pp. 115-139).
The National Wildlife Refuge System Improvement Act of 1997 and the Fish and Wildlife Service Manual (601 FW 3, 602 FW 3) require maintaining biological integrity and diversity, comprehensive conservation planning for each refuge, and set standards to ensure that all uses of refuges are compatible with their purposes and the Refuge System's wildlife conservation mission. The comprehensive conservation plan (plan) addresses conservation of fish, wildlife, and plant resources and their related habitats, while providing opportunities for compatible wildlife-dependent recreation uses. An overriding consideration reflected in these plans is that fish and wildlife conservation has first priority in refuge management, and that public use be allowed and encouraged as long as it is compatible with, or does not detract from, the Refuge System mission and refuge purpose(s).
The Texas Chenier Plains National Wildlife Refuge Complex, which includes Anahuac and Texas Point National Wildlife Refuges, and the Southwest Louisiana National Wildlife Refuge Complex, which includes Cameron and Sabine National Wildlife Refuges, encompass most of the known, and much of the potential, habitat for Bay skipper in Texas and Louisiana (see Background, above). Both Refuge complexes have developed plans that prohibit, or closely control, land use management actions which may be harmful to maritime habitats and wildlife species, including the Bay skipper (U.S. Fish and Wildlife Service 2006, 2007, 2008). Currently, the Bay skipper is not specifically named in the plans for each refuge; however, protection is provided to the species indirectly through management of potentially harmful land uses, and the plans can, and will be, amended to incorporate new information on locations and habitat management for Bay skipper (Hunter, pers. comm. 2012).
The Bay skipper is also found on the Rockefeller Wildlife Refuge, managed by the Louisiana Department of Wildlife and Fisheries, and Sea Rim State Park, managed by Texas Parks and Wildlife Department. Management activities on State Parks and Refuges are guided by State Wildlife Action Plans (Louisiana Department of Wildlife and Fisheries
In summary, we find that while Bay skippers are periodically and locally affected by hurricanes and tropical storms, the species and their habitats are adapted to such events. We find no evidence that the Bay skipper and the maritime plant communities upon which it depends will be unable to shift their distributions to accommodate current rates of sea level rise. Their flight capability, and the production of two generations per year of the Bay skipper, should enable the species to rapidly colonize areas impacted by severe storm events, as well as adjust to maritime habitat shifts that may occur from sea level rise. We also find little evidence that land management actions are now having, or have in the past, had a wide negative effect on the species. Additionally, the magnitude of all of these potential threats to the species has also been reduced by the discovery and recognition of the Bay skipper's wider distribution, and ongoing efforts to protect and enhance estuarine marsh habitats. Therefore, our review of the best available scientific and commercial information does not provide evidence that the present or threatened destruction, modification, or curtailment of habitat and range represents an ongoing and significant threat to the Bay skipper now or in the future.
Rare butterflies and moths can be highly prized by collectors, and an international trade exists for some species for both live and decorative markets, as well as the specialist trade that supplies hobbyists, collectors, and researchers (e.g., Collins and Morris 1985, pp. 155-179;
Studies suggest that various diseases and parasites (
The Bay skipper is classified as an S1 species in both Texas and Mississippi (NatureServe 2011). The S1 designation, based upon the number of occurrences within a State, is considered “critically imperiled—State level” under the NatureServe construct. However, no formal or regulatory consideration is provided to the species or its habitat in Texas or Mississippi as a result of this classification. The Bay skipper has only recently been discovered in Louisiana (Marks 2011a, pp. 92-94; Salvato 2011, pp. 1-15), but receives no formal protections in that State. The Louisiana Natural Heritage Program has been informed of the discovery of the species in the State, and is currently working to update the NatureServe list to reflect that it has been found in the State (Bass pers. comm. 2012).
As noted under “Other Conservation Efforts,” above, the Louisiana CPRA has been established to work with other State and Federal agencies and nongovernmental entities to protect and restore Louisiana coastal wetlands, which include Bay skipper herbaceous marsh habitats. In addition, Bay skipper populations occurring on National Wildlife Refuges are protected by the National Wildlife Refuge System Improvement Act of 1997 and its implementing regulations, which require maintaining biological integrity and diversity on refuge lands. Bay skipper populations occurring in private estuarine wetland habitats are generally protected under section 404 of the Clean Water Act, which established a project review and permitting process to avoid or minimize wetland impacts, and which requires mitigation of unavoidable impacts.
Therefore, based on our analysis of the best available scientific and commercial information, there is currently no evidence that the inadequacy of existing regulatory mechanisms is a threat to the Bay skipper now or in the future.
Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our
As noted under Factor A (above), annual rates of sea level rise along the Gulf of Mexico within the range currently or potentially occupied by Bay skipper vary from 2.1 mm (0.0827 in)/year at Pensacola, Florida, to 9.6 mm (0.378 in)/year at Eugene Island, Louisiana, and 6.84 mm (0.2693 in)/year at Galveston, Texas (National Oceanographic and Atmospheric Administration 2012), and the estuarine plant communities that support the Bay skipper are composed of species that have the ability to rapidly colonize new areas under appropriate conditions and, therefore, can shift their distributions to accommodate currently predicted rates of sea level rise. Additionally, the flight capability of the Bay skipper and its ability to produce two generations per year enable the species to adjust to and exploit estuarine habitat shifts that may occur from gradual sea level rise. Also noted under Factor A (above), is the resilience of estuarine-adapted butterfly species to major storm events subjecting their habitats to inundation. This is supported by the discovery of new populations of Bay skipper (Salvato 2011, pp. 1-15) in areas that have recently been subjected to one or more severe tropical storms (see Background, above). Rising temperatures associated with climate change and rising sea levels may also present new host and nectaring plant opportunities for Bay skipper (e.g., Pateman
Climate change can cause more frequent and severe storms, including hurricanes. This can have a number of detrimental effects on butterfly populations, including habitat loss, destruction of preferred food and host plants, flooding, and extirpation of affected populations. There is concern that hurricanes may have extirpated Bay skipper populations from Bay St. Louis, Mississippi, and Anahuac NWR, Texas, due to habitat damage and inundation. However, seven new populations of Bay skipper were discovered, all of them in locations that have experienced one or more recent hurricane storm events. This indicates that while severe storms have the potential to negatively affect Bay skipper populations, the species is capable of recovering from storm damage, even when storms occur closely spaced in time, such as Hurricanes Gustav and Ike in 2008. Salvato and Salvato (2007) noted that butterflies that were quick to recover after severe storms were those species associated with the local vegetation. The Bay skipper is endemic to estuarine marsh habitats and associated with vegetation that is quick to colonize new areas under appropriate conditions, so the Bay skipper is likely capable of recovering quickly from severe storms. The species also has the advantage of producing two generations per year, allowing for faster recolonization of damaged areas. Our review of the best available scientific and commercial information does not indicate that increased frequency and intensity of storms is a significant threat to the species.
Species with small population sizes and restricted ranges are more vulnerable to random natural or human-induced events (e.g., storms, droughts, spills, etc.). There were concerns that the Bay skipper may have been extirpated after the habitat for the Bay St. Louis, Mississippi, population of Bay skipper was severely damaged by Hurricane Katrina in 2005, and the habitat for the Anahuac NWR, Texas, population was inundated by Hurricane Ike in 2008 (WildEarth Guardians and Xerces Society for Invertebrate Conservation 2009, p. 9). However, the discovery of additional populations, inhabiting locations which were not previously known to be occupied, with limited survey effort at the end of the September 2011 flight season, indicates that the range and total population size of the Bay skipper is poorly known and may neither be restricted, nor small (see Background). Additionally, apart from localized stochastic events, our review of the best available scientific and commercial information did not provide evidence of any specific threats to the known populations (see Factors A, B, C, and D, above), nor did it indicate that the Bay skipper is biologically vulnerable due to restricted range and small population size.
Butterflies and their larvae are vulnerable to pesticides; however, the estuarine marsh habitats where the species occurs are not subject to activities requiring pesticide use (see Factor A, above), and there is no available evidence to indicate that the Bay skipper is being impacted or is likely to be impacted by pesticide or other chemical use.
The discovery of additional populations and a wider range for the Bay skipper reduces the species' potential vulnerability to stochastic events. In summary, our review of the best available scientific and commercial information found no evidence that other natural or manmade factors, such as rising sea level due to climate change, biological vulnerability from restricted range or small population size, or pesticide use are threats to the Bay skipper either now or in the future.
As required by the Act, in assessing whether the Bay skipper is an endangered or threatened species throughout all of its range, we considered the five factors. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the Bay skipper. We reviewed the petition, information available in our files, other available published and unpublished information, and we consulted with recognized butterfly experts and other Federal and State agencies. We also conducted a brief survey for the species (Salvato 2011, pp. 1-28).
Information acquired during our review of the Bay skipper indicated that there has been an increase in the known range of the species, and an expansion of the number of known site occurrences for the species. Our limited survey of potential habitats between the Florida panhandle and Galveston, Texas, found abundant and apparently suitable habitat, and confirmed seven new site records in 7 days (Salvato 2011, pp. 1-28). In addition, there is a large extent of coastal estuarine habitats along Texas, Louisiana, and Mississippi that have not been surveyed for the presence of the Bay skipper. Existing programs have been developed and implemented to conserve and restore the extensive estuarine wetland network occupied by the Bay skipper.
Our review of the best available scientific and commercial information revealed that the Bay skipper is poorly known and additional research is needed to define range and abundance. However, during our status review, we did not document any significant threats to the species or its habitat throughout its currently known range, or within a significant portion of that range; instead, with minimal effort we increased the number of known populations (from 2 to 7), and extended the range of the
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the threats are not of sufficient severity or intensity to indicate that the Bay skipper is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout all or a significant portion of its range. Therefore, we find that listing the Bay skipper as an endangered or threatened species is not warranted throughout all of its range at this time.
Having determined that the Bay skipper does not meet the definition of an endangered or threatened species throughout its entire range, we must next consider whether there are any significant portions of the range where the Bay skipper is in danger of extinction or is likely to become endangered in the foreseeable future. A portion of a species' range is significant if it is part of the current range of the species and it contributes substantially to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species.
In determining whether a species is an endangered or threatened species in a significant portion of its range, we first identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be both (1) significant and (2) endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant, and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not significant, such portions will not warrant further consideration.
If we identify portions that warrant further consideration, we then determine whether the species is endangered or threatened in these portions of its range. Depending on the biology of the species, its range, and the threats it faces, the Service may address either the significance question or the status question first. Thus, if the Service considers significance first and determines that a portion of the range is not significant, the Service need not determine whether the species is an endangered or threatened species. Likewise, if the Service considers status first and determines that the species is not an endangered or threatened species in a portion of its range, the Service need not determine if that portion is significant. However, if the Service determines that both a portion of the range of a species is significant and the species is an endangered or threatened species, the Service will specify that portion of the range as an endangered or threatened species under section 4(c)(1) of the Act.
The Bay skipper is highly restricted to estuarine habitats, and threats to estuarine habitats are limited and localized throughout its range. This species' small range suggests that stressors are likely to affect it in a uniform manner throughout its range. However, we found the stressors are not of sufficient intensity or severity or geographically concentrated to warrant evaluating whether a portion of the range is significant under the Act. Accordingly, our assessment applies to the Bay skipper throughout its entire range.
We do not find that the Bay skipper is in danger of extinction now, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, listing the Bay skipper as an endangered or threatened species under the Act is not warranted at this time.
We request that you submit any new information concerning the status of, or threats to, the Bay skipper to the Mississippi Ecological Service's Fish and Wildlife Office (see
A complete list of references cited is available on the Internet at
The primary author of this notice is the staff of the Mississippi Ecological Services Field Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
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.
Forest Service, USDA.
Notice of meeting.
The Southwest Mississippi Resource Advisory Committee will meet in Meadville, MS. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act.
The meeting will be held Tuesday, September 18, 2012; 6:00 p.m.
The meeting will be held at 3085 Hwy 98 East, Homochitto Ranger District Work Center. A map and directions may be obtained by calling the contact listed below.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Homochitto District Office. Please call ahead to 601-384-5876 to facilitate entry into the building to view comments.
Bruce Prud'homme, District Ranger, 601-384-5876, TTY 601-384-8056,
The following business will be conducted: general business, previous project status updates, project funding, review and
Forest Service, USDA.
Notice of meeting.
The Upper Rio Grande Resource Advisory Committee will meet in South Fork, Colorado. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend project proposals to be funded with the title II of the Act.
The meeting will be held on September 12, 2012 and will begin at 10:00 a.m.
The meeting will be held at the South Fork Community Building, 0254 Highway 149, South Fork, Colorado. Written comments should be sent to Mike Blakeman, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144. Please call ahead to 719-852-5941 to facilitate entry into the building to view comments.
Mike Blakeman, RAC coordinator, USDA, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144; 719-852-6212; Email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Introductions of all committee members, replacement members and Forest Service personnel; (2) Review status of approved projects; (3) Review, evaluate and recommend project proposals to be funded with Title II money; and (4) Public Comment. More information may be viewed at
Forest Service, USDA.
Notice of meeting.
The Eastern Arizona Resource Advisory Committee will meet in Springerville, Arizona. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L 112-141) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects authorized under title II of the Act.
The meeting will be held September 18, 2012, beginning at 10:30 a.m. until 5 p.m., and continue if necessary, on September 19, 2012, beginning at 9:00 a.m.until approximately 4 p.m.
The meeting will be held at the Apache-Sitgreaves National Forests Supervisor's Office conference room, located at 30 South Chiricahua Drive, Springerville, Arizona 85938. Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Apache-Sitgreaves National Forests Supervisor's Office, located at 30 South Chiricahua Drive, Springerville, Arizona 85938. Please call ahead to 928 333-6261 to facilitate entry into the building to view comments.
Joe Vieth, RAC Program Coordinator, Eastern Arizona Resource Advisory Committee, Apache-Sitgreaves National Forests, telephone 928 333-6261 or
The following business will be conducted: the Resource Advisory Committee will review and recommend funding of project proposals. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before the meeting. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by September 10, 2012 to be scheduled on the agenda. Written comments and requests for time for oral comments must be sent to Apache-Sitgreaves National Forests, P.O. Box 640, Springerville, AZ 85938, or by email to
Forest Service, USDA.
Notice of meeting.
The North Central Idaho RAC will be meeting via a conference call. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the meeting is for RAC Members to recommend additional FY 2013 Title II projects (under the one year Secure Rural Schools extension) for approval. Meetings are always open to the public.
The meeting will be held on September 6, 2012, at 1:00 p.m. (PST).
The meeting will be held at the Nez Perce National Forest Supervisors Office, 104 Airport Road, Grangeville, Idaho. Written comments should be sent to Laura Smith at 104 Airport Road in Grangeville, Idaho 83530. Comments may also be sent via email to
Laura Smith, Designated Forest Official at 208-983-5143.
The meeting is open to the public. A public forum will begin at 2:00 p.m. (PST) on the meeting day. The following business will be conducted: Comments and questions from the public to the committee. Persons who wish to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting.
Forest Service, USDA.
Notice of meeting.
The Saguache Resource Advisory Committee will meet in Saguache, Colorado. The committee is meeting as authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) and in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend project proposals to be funded with the title II of the Act.
The meeting will be held on September 17, 2012 and will begin at 10:00 a.m.
The meeting will be held at the Saguache County Road and Bridge building, 305 Third Street, Saguache, Colorado. Written comments should be sent to Mike Blakeman, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144. Please call ahead to 719-852-5941 to facilitate entry into the building to view comments.
Mike Blakeman, RAC coordinator, USDA, San Luis Valley Public Lands Center, 1803 West U.S. Highway 160, Monte Vista, CO 81144; 719-852-6212; Email
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Introductions of all committee members, replacement members and Forest Service personnel; (2) Review status of approved projects; (3) Review, evaluate and recommend project proposals to be funded with Title II money; and (4) Public Comment. More information may be viewed at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
The primary purpose of collecting the voting data from the November CPS supplement is to relate demographic characteristics (age, sex, race, education, occupation, and income) to voting and nonvoting behavior. Federal, state, and local election officials; college institutions; political party committees; research groups; and other private organizations will use the voting and registration data collected in the November CPS supplement. Election officials use these data to formulate policies relating to the voting and registration process. Data obtained on duration of residence will allow policymakers and researchers to better determine the relationships between other demographic characteristics and voting behavior. Previous studies have shown that the voting and registration characteristics of recent movers differ greatly from those of nonmovers. By collecting and presenting data at the state level, we will also obtain information on the effectiveness of increased voter registration drives in different regions.
Discontinuance of the Voting and Registration Supplement would disrupt a data series that has been in existence for the past 46 years. Since 1964, these data have provided statistical information for tracking historical trends of voter and nonvoter characteristics in each presidential and congressional election.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482-0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Brian Harris-Kojetin, OMB Desk Officer either by fax (202-395-7245) or email (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) will hold a public meeting.
The meeting will be held on Thursday, September 13, 2012 beginning at 10 a.m.
The meeting will be held via webinar with a telephone-only connection option. Details on webinar registration and the telephone-only connection details are available at:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331, extension 255.
The purpose of the meeting is (1) data and analyses which will form the basis for the 2013-16 ABC determination for spiny dogfish and (2) a request by the Council to clarify the SSC's 2012 ABC recommendation for butterfish. Information about accessing the webinar on September 13 is available on the Councils Web site at
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of four Letters of Authorization.
In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notification is hereby given that NMFS has issued four 1-year Letters of Authorization (LOAs) to take marine mammals by harassment incidental to the U.S. Navy's operation of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar operations to the Chief of Naval Operations, Department of the Navy, 2000 Navy Pentagon, Washington, DC 20350 and persons operating under his authority.
Effective from August 15, 2012, through August 14, 2013.
Electronic copies of the Navy's April 19, 2012, LOA application letter and the LOAs are available by writing to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning the contact listed here (see
Jeannine Cody, Office of Protected Resources, NMFS (301) 427-8401.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Authorization may be granted for periods of 5 years or less if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations also must include requirements pertaining to the monitoring and reporting of such taking.
Regulations governing the taking of marine mammals incidental to the U.S. Navy's operation of SURTASS LFA sonar were effective on August 15, 2012 (77 FR 50290, August 20, 2012) and remain in effect through August 15, 2017. They are codified at 50 CFR part 218 subpart X. These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals by the SURTASS LFA sonar system. For detailed information on this action, please refer to the August 20, 2012
NMFS received an application from the U.S. Navy for four LOAs, one covering the USNS VICTORIOUS (T-AGOS 19), one covering the USNS ABLE (T-AGOS 20), one covering the USNS EFFECTIVE (T-AGOS 21), and one covering the USNS IMPECCABLE (T-AGOS 23), under the regulations effective on August 15, 2012 (77 FR 50290, August 20, 2012). The Navy requested that these LOAs become effective on August 15, 2012. The application requested authorization, for a period not to exceed one year, to take, by harassment, marine mammals incidental to employment of the SURTASS LFA sonar system for training, testing and routine military operations on the aforementioned ships in areas of the Pacific Ocean, as described in the 2012 regulations.
In compliance with NMFS' 2007 SURTASS LFA sonar regulations which expired on August 15, 2007, the Navy submitted a comprehensive report on SURTASS LFA sonar operations and the mitigation and monitoring activities conducted under the LOAs issued under its previous rule for the 2007 through 2012 period. A copy of this report can be viewed and/or downloaded at:
In accordance with the current SURTASS LFA sonar regulations (50 CFR 218.230), the Navy must submit quarterly mitigation monitoring reports; annual reports; and a 5-year comprehensive report. Under the previous two rulemakings, the Navy has not exceeded the take authorized by NMFS. Upon receipt, NMFS will post this annual report at
NMFS has issued four LOAs to the U.S. Navy, authorizing the incidental harassment of marine mammals, incidental to operating the four SURTASS LFA sonar systems for routine training, testing and use during military operations. Issuance of these four LOAs is based on findings, described in the preamble to the final rule (77 FR 50290, August 20, 2012) and supported by information contained in the Navy's required reports on SURTASS LFA sonar, that the activities described under these four LOAs will have no more than a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stocks for subsistence uses.
These LOAs remain valid through August 14, 2013, provided the Navy remains in conformance with the conditions of the regulations and the LOAs, and the mitigation, monitoring, and reporting requirements described in 50 CFR 218.230 through 218.241 (77 FR 50290, August 20, 2012) and in the LOAs are undertaken.
DoD.
Renewal of Federal Advisory Committee.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b), and 41 CFR 102-3.50(d), the Department of Defense gives notice that it is renewing the charter for the Missile Defense Advisory Committee (hereafter referred to as “the Committee”).
The Committee shall provide the Secretary of Defense, through the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Director, Missile Defense Agency (MDA), independent advice and recommendations on all matters relating to missile defense, including system development, technology, program maturity and readiness of configurations for the Ballistic Missile Defense System.
The Committee shall be composed of not more than eleven Committee members, who are eminent authorities in the field of national defense policy, acquisition and technical areas relating to Ballistic Missile Defense System Programs including distinguished members of academia and the science and technology communities; Federally Funded Research and Development Centers (FFRDCs)/National Laboratories and industry.
Committee members shall be appointed by the Secretary of Defense and their appointments will be renewed on an annual basis. Those members, who are not full-time or permanent part-time federal officers or employees, shall be appointed as experts and consultants under the authority of 5 U.S.C. 3109 and serve as special government employees. With the exception of travel and per diem for official Committee related travel, Committee members shall serve without compensation, unless authorized by the Secretary of Defense.
Committee members may be appointed for term of service ranging from one-to-two years. Unless authorized by the Secretary of Defense, no member may serve more than two consecutive terms of service. This same term of service limitation also applies to any DoD authorized subcommittees.
The Secretary of Defense, based upon the recommendation of the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall appoint the Committee's Chairperson from the total Committee membership. The Under Secretary of Defense Acquisition, Technology, and Logistics, shall appoint the Vice Chairperson, based on the recommendation of the Director, MDA. The Committee Chairperson and Vice Chairperson may serve a term of service of one-to-two years and may serve more than one term of service, not to exceed two terms, and not to exceed their maximum allowed membership on the Committee; however, with the concurrence of the appointing authority, may be reappointed in these positions for additional terms.
The Under Secretary of Defense for Acquisition, Technology, and Logistics, pursuant to DoD policies/procedures, may appoint, as deemed necessary, experts and consultants, with special expertise, to assist the Committee on an ad hoc basis. These experts and consultants, if not full-time or part time government employees, shall be appointed under the authority of 5 U.S.C. 3109, shall serve as special government employees, shall be appointed on an intermittent basis to work specific Committee-related efforts, and shall have no voting rights. Non-voting experts and consultants shall serve terms of appointments as determined by the Under Secretary of Defense for Acquisition, Technology, and Logistics, according to DoD policy/procedures. Non-voting experts and consultants appointed by the Under Secretary of Defense for Acquisition, Technology, and Logistics shall not count toward the Committee's total membership.
Each Committee member is appointed to provide advice on behalf of the government on the basis of his or her best judgment without representing any particular point of view and in a manner that is free from conflict of interest.
The Department, when necessary and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees to support the Committee. Establishment of subcommittees will be based upon a written determination, to include terms of reference, by the Secretary of Defense, the Deputy Secretary of Defense, or the Under Secretary of Defense for Acquisition, Technology, and Logistics.
The Committee has established three permanent subcommittees: The Technical Subcommittee, Geopolitical Subcommittee, and the Agency Strategic Operations Subcommittee which are comprised of members who are eminent authorities in the fields of science, technology, manufacturing, acquisition process, system development, national defense policy and other matters of special interest to the DoD and MDA.
a. The Technical Subcommittee shall be comprised of no more than seven members. The primary focus of the Subcommittee is to conduct independent reviews and assessments of topics deemed critical by the Secretary of Defense, Deputy Secretary of Defense, and Under Secretary of Defense for Acquisition, Technology, and Logistics including application of technology to improve missile defense capabilities and quality and relevance of missile defense science, engineering and technology programs; and system development. The estimated number of subcommittee meeting is up to four per year.
b. The Geopolitical Subcommittee shall be comprised of no more than six members. The primary focus of the Subcommittee is to conduct independent reviews and assessments of topics deemed critical by the Secretary of Defense, Deputy Secretary of Defense, and Under Secretary of Defense for Acquisition, Technology, and Logistics including issues central to missile defense strategic priorities and policy implications of United States defense strategies; program maturity and readiness of configurations; national defense policy and acquisition. The estimated number of subcommittee meetings is up to four per year.
c. The Agency Strategic Operations Subcommittee shall be comprised of no more than six members. The primary focus of the Subcommittee is to conduct independent reviews and assessments of quick reaction and ad hoc topics deemed critical by the Secretary of Defense, Deputy Secretary of Defense, Under Secretary of Defense for Acquisition, Technology, and Logistics, and Director, Missile Defense Agency. The estimated number of subcommittee meeting is up to four per year.
These subcommittees shall not work independently of the chartered Committee, and shall report all their recommendations and advice to the Committee for full deliberation and discussion. These subcommittees have no authority to make decisions on behalf of the chartered Committee; nor can any subcommittee or its members update or report directly to the DoD or any Federal officers or employees who are not Committee members.
All subcommittee members shall be appointed in the same manner as the Committee members; that is, the Secretary of Defense shall appoint subcommittee members even if the member in question is already a Committee member. Subcommittee members, with the approval of the
Subcommittee members, if not full-time or part-time government employees, shall be appointed to serve as experts and consultants under the authority of 5 U.S.C. 3109, and shall serve as special government employees, whose appointments must be renewed by the Secretary of Defense on an annual basis. With the exception of travel and per diem for official Committee-related travel, subcommittee members shall serve without compensation.
All subcommittees operate under the provisions of FACA, the Government in the Sunshine Act, governing Federal statutes and regulations, and governing DoD policies/procedures.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Committee shall meet at the call of the Designated Federal Officer, in consultation with the Chairperson. The estimated number of Committee meetings is four per year.
In addition, the Designated Federal Officer is required to be in attendance at all Committee and subcommittee meetings for the entire duration of each and every meeting; however, in the absence of the Designated Federal Officer, a properly approved Alternate Designated Federal Officer shall attend the entire duration of the Committee or subcommittee meeting.
The Designated Federal Officer, or the Alternate Designated Federal Officer, shall call all of the Committee's and subcommittee's meetings; prepare and approve all meeting agendas; adjourn any meeting when the Designated Federal Officer, or the Alternate Designated Federal Officer, determines adjournment to be in the public interest or required by governing regulations or DoD policies/procedures; and chair meetings when directed to do so by the official to whom the Committee reports.
Pursuant to 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written statements to Missile Defense Advisory Committee membership about the Committee's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of Missile Defense Advisory Committee.
All written statements shall be submitted to the Designated Federal Officer for the Missile Defense Advisory Committee, and this individual will ensure that the written statements are provided to the membership for their consideration. Contact information for the Missile Defense Advisory Committee's Designated Federal Officer can be obtained from the GSA's FACA Database—
The Designated Federal Officer, pursuant to 41 CFR 102-3.150, will announce planned meetings of the Missile Defense Advisory Committee. The Designated Federal Officer, at that time, may provide additional guidance on the submission of written statements that are in response to the stated agenda for the planned meeting in question.
Per Diem, Travel and Transportation Allowance Committee, DOD.
Notice of revised non-foreign overseas per diem rates.
The Per Diem, Travel and Transportation Allowance Committee is publishing Civilian Personnel Per Diem Bulletin Number 285. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 285 is being published in the
Mrs. Sonia Malik, 571-372-1276.
United States Security Forces Center, Headquarters, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by October 29, 2012.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to HQ AFSFC/SFOP, ATTN: TSgt Heather M. Cain/TSgt Janaea E. Warner,1517 Billy Mitchell Blvd., Lackland AFB, TX 78236-0119, or call SFOP, Security Forces Police Services, at 210-925-5050/0266.
The Pass & ID module in SFMIS automated most of SF clerical tasks, a majority of administrative tasks formerly performed manually are now done online via SFMIS, (i.e. AF Form 1199A, 1199B, 1199C, 1199D,
Respondents are DoD personnel assigned to Security Forces units who provide visitor passes for installation access and restricted area badges for controlled and restricted area access. SFMIS maintains personal information such as: Full names, Social Security Numbers (SSN); date of birth, home address, phone numbers, alias; race ethnicity, sex, height, weight, eye hair color, and any approved document (must be a picture ID) that is accepted as proof of identity, it must not be expired and has to be valid. SFMIS provides Restricted Area Badge creation and Installation Access Control in those cases where DBIDS is not fully deployed.
The Badge/ID panel in the Pass & ID Module is used to record restricted and controlled area badges or identification cards using the information collected on the AF 2586. SFMIS will maintain an inventory on the stored data and create an Entry Authority List (EAL) or Master Entry Authority List (MEAL). SFMIS also prints restricted area badges, maintains the inventory and prints a destruction certificate for destroyed restricted area badges.
This Visitor Pass panel in the Pass & ID Module is used to complete visitor pass requests and view and print the AF Form 75. An electronic signature pad can be set up with SFMIS to capture the visitor's electronic signature. Visitor passes can be completed two different ways. First, SF personnel can create a new visitor pass for a customer by entering the visitor's information into the system. Secondly, SF personnel can search the system for a pending web registration or kiosk request; select the name in the search results grid and it will populate the panel with the existing information. Visitor passes are stored in SFMIS for a 90 day period. During these 90 days, previously issued visitor passes can be recalled. Visitor passes may be recalled as an investigative tool or it can be used to issue a new pass based on the previous information.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Intent (NOI).
The U.S. Army Corps of Engineers (USACE), Jacksonville
The Draft EIS is intended to be sufficient in scope to address federal and other requirements and environmental issues concerning the Proposed Action to support the Corps determination whether to issue a Section 404 permit.
The USACE plans to hold a public scoping meeting September 6, 2012, at 6:30 p.m. Eastern Standard Time (EST).
The public scoping meeting will be held at 3301 Gun Club Road, West Palm Beach, Florida 33406.
Questions about the Proposed Action and Draft EIS should be directed to Ms. Alisa Zarbo, (561) 472-3516 or by email at
a.
b.
c.
d.
e.
f.
The Corps is furnishing this notice to advise other Federal and State agencies, affected federally recognized Tribes, and the public of our intentions. This notice announces the initiation of a 30-day scoping period which requests the public's involvement in the scoping and evaluation process of the Draft EIS. Stakeholders will be notified through advertisements, public notices and other means. All parties who express interest will be given an opportunity to participate in this process. The process allows the Corps to obtain suggestions and information on the scope of issues and an opportunity to provide reasonable alternatives to be included in the Draft EIS. (See
g.
h.
i.
k.
U.S. Department of Education, White House Initiative on Educational Excellence for Hispanics.
Notice of an Open Conference Call Meeting.
This notice sets forth the announcement of a conference call meeting of the President's Advisory Commission on Educational Excellence for Hispanics. The notice also describes the functions of the Commission. Notice of the meeting is required by section 10(a)(2) of the Federal Advisory Committee Act and is intended to notify the public of this meeting.
Friday, September 7, 2012.
For members of the public who wish to convene in person and listen to the conference call meeting, please arrive at the U.S. Department of Education, Lyndon Baines Johnson Building, Room 1W103, 400 Maryland Avenue SW., Washington, DC, no later than 3:30 p.m. Please RSVP to
Marco A. Davis, Deputy Director, White House Initiative on Educational Excellence for Hispanics, 400 Maryland Ave. SW., Room 4W110, Washington, DC 20202; telephone: 202-453-7023.
The President's Advisory Commission on Educational Excellence for Hispanics (the Commission) is established by Executive Order 13555 (Oct. 19, 2010). The Commission is governed by the provisions of the Federal Advisory Committee Act (FACA), (Pub. L. 92-463; as amended, 5 U.S.C.A., Appendix 2) which sets forth standards for the formation and use of advisory committees. The purpose of the Commission is to advise the President and the Secretary of Education (Secretary) on all matters pertaining to the education attainment of the Hispanic community.
The Commission shall advise the President and the Secretary in the following areas: (i) Developing, implementing, and coordinating educational programs and initiatives at the Department and other agencies to improve educational opportunities and outcomes for Hispanics of all ages; (ii) increasing the participation of the Hispanic community and Hispanic-Serving Institutions in the Department's programs and in education programs at other agencies; (iii) engaging the philanthropic, business, nonprofit, and education communities in a national dialogue regarding the mission and objectives of this order; (iv) establishing partnerships with public, private, philanthropic, and nonprofit stakeholders to meet the mission and policy objectives of this order.
The Commission will discuss the activities of its subcommittees and identify next steps.
Please be advised that members of the public will be able to listen only to the conference call meeting. There will not be an opportunity for public comment during this meeting due to time constraints. However, members of the public may submit written comments related to the work of the Commission via
Records are kept of all Commission proceedings and are available for public inspection at the office of the White House Initiative on Educational Excellence for Hispanics, U.S. Department of Education, 400 Maryland Ave. SW., Room 4W108, Washington, DC, 20202, Monday through Friday (excluding federal holidays) during the hours of 9 a.m. to 5 p.m.
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Notice of availability and request for public comment.
The
The
The framing document is intended to serve as the common framework for stakeholder engagement through public information exchanges and public comment.
Public comments on this proposed framing document must be received on or before October 29, 2012 to ensure consideration.
Electronic mail comments may be submitted to:
Written comments should be sent to Mr. David Howell, Office of Energy Efficiency and Renewable Energy (EE-2G), U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0121 or by fax at 202-586-1600, or by email at
Respondents are encouraged to submit comments electronically to ensure timely receipt. The DOE EV Everywhere framing document can be accessed at
For information concerning this notice, contact Mr. David Howell, Office of Energy Efficiency and Renewable Energy (EE-2G), U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0121, or
This notice requests public comment on the following questions related to the DOE
A.
B.
1. A plug-in hybrid electric vehicle with a 40-mile all-electric range (PHEV-40) with limited fast-charge infrastructure;
2. An all-electric vehicle with a 100-mile range (AEV-100) with significant intra-city and inter-city fast charge infrastructure; and
3. An all-electric vehicle with a 300-mile range (AEV-300) with significant inter-city fast charge infrastructure.
Have we correctly identified and structured these three scenarios?
Are there other scenarios that are more appropriate?
C.
D.
E.
G.
H.
The Department also welcomes comment on the format and tone of the framing document as well as identification of any factual errors or omissions of relevant facts and data. The Department also welcomes any additional comments related to the framing document and the
It is the policy of the Department to ensure that public participation is an integral and effective part of DOE activities, and that decisions are made with the benefit of significant public input and perspectives.
The Department recognizes the many benefits to be derived from public participation for both stakeholders and DOE. Public participation provides a means for DOE to gather a diverse collection of opinions, perspectives, and values from the broadest spectrum of the public, enabling the Department to make more informed decisions. Public participation benefits stakeholders by creating an opportunity to provide input on decisions that affect their communities and our Nation.
In keeping with the President's commitment to transparency in Government, DOE will post online at
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Archon filed its request to use the Traditional Licensing Process and provided public notice of its request on July 9, 2012. In a letter dated August 21, 2012, the Director of the Division of Hydropower Licensing approved Archon's request to use the Traditional Licensing Process.
k.
l. With this notice, we are designating Archon as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act.
m. Archon filed a Pre-Application Document (PAD) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
o. Register online at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47879), the Office of Energy Projects has reviewed the application for a small hydropower project exemption for the Catamount Hydroelectric Project, to be located at the existing Catamount dam and Lake Catamount in Routt County, near the City of Steamboat Springs, in the state of Colorado, and has prepared an Environmental Assessment (EA). In the EA, Commission staff analyzed the potential environmental effects of the proposed project and concludes that issuing an exemption for the project, with appropriate environmental measures, would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice. Comments may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
To paper-file, mail an original and seven copies to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. Please affix Project No. 14368-000 to all comments.
For further information, contact Shana Murray at (202) 502-8333 or by email at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's regulations, 18 CFR Part 380 (Order No. 486, 52 FR 47,897), the Office of Energy Projects has reviewed the application for an original license to construct the Angelo Dam Hydropower Project, and has prepared an environmental assessment (EA). The proposed 205-kilowatt project would be located on the La Crosse River in the Township of Angelo, Monroe County, Wisconsin at an existing dam owned by Monroe County. The project would not occupy federal lands.
The EA includes staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice. Comments may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
Please contact Isis Johnson by telephone at (202) 502-6346, or by email at
On October 21, 2011, Western Technical College (Western) filed an application with the Federal Energy Regulatory Commission (Commission) for an original, minor license to construct, operate, and maintain the proposed 205-kilowatt (kW) Angelo Dam Hydropower Project No. 13417-002 (project). The project would be located on the La Crosse River in the Township of Angelo, Monroe County, Wisconsin at the existing Angelo dam owned by Monroe County. The project would not occupy federal lands.
The Angelo dam was built by Northern States Power in the 1920's. Northern States Power generated electricity at the Angelo dam until 1969 and then removed the generating equipment and transferred the dam and associated reservoir (Angelo Pond) to Monroe County. In 1998, Monroe County rehabilitated the dam.
The Angelo dam has a total length of 615.5 feet and is composed of a left earthen embankment, a concrete spillway and non-overflow structure, and a right earthen embankment. The left earthen embankment has a length of 400 feet and a maximum height of approximately 14 feet. The right earthen embankment has a length of 124 feet and a maximum height of approximately 12 feet. The spillway and non-overflow section are constructed of reinforced concrete and have a total length of 91.5 feet. The spillway is 72.42 feet long and 9.6 feet high from the foundation level to its crest. The spillway has four, 13.5-foot-wide by 11.4-foot-high bays each with 13.5-foot-wide by 6.9-foot-high steel tainter gates. The non-overflow section is 19.08 feet long, 20 feet high, and 19.7 feet wide.
The reservoir has a surface area of 52 acres at elevation 793 feet mean sea level (msl). The reservoir's storage capacity is 450 acre-feet at the dam's crest elevation of 795 feet msl.
The dam and reservoir currently provide recreational benefits to the project area. There is no hydroelectric generation at the dam. The dam is operated manually in a run-of-river mode (i.e., an operating mode where outflows from the dam and reservoir approximate inflows to the reservoir).
Western proposes to acquire the rights to and utilize the Angelo dam and reservoir for power generation. Western would convert the dam's non-overflow section to serve as the project's intake. The conversion would involve removing a concrete cap and plug that was poured in 1998 when the dam was rehabilitated. Western would also construct, operate, and maintain the following facilities at the dam and reservoir: (1) A 22.84-foot-long by 16.08-foot-wide trashrack with 2-inch-clear bar spacing installed at the intake in the non-overflow section; (2) a 20-foot by 20-foot by 20-foot reinforced concrete box forebay; (3) a 26-foot-long by 24.5-foot-wide by 40-foot-high powerhouse located at the right abutment of the dam and containing a 205-kW vertical, double-regulated Kaplan turbine; (4) a 30-foot-long, 480-volt overhead transmission line connecting the powerhouse generator to a step-up transformer that would be located on a pole which is part of Northern States Power's 2.7-kilovolt (kV) distribution line; and (5) appurtenant facilities.
The project would be operated in a run-of-river mode using the natural flow of the La Crosse River. The estimated average annual project generation is about 950 megawatt-hours (MWh).
Western proposes the following environmental measures to protect or enhance resources in the vicinity of the proposed project:
• An erosion and sediment control plan with provisions for using best management practices, including installing a temporary inflatable cofferdam, and placing hay bales and siltation fabric at locations where sediment-laden runoff could otherwise enter project waters or adjacent non-project lands;
• Operating the project in a run-of-the-river mode to protect water quality and quantity, and fish and aquatic resources; and
• Implementing the Commission's statewide programmatic agreement (PA) for projects in Wisconsin, and implementing a Historic Properties Management Plan (HPMP) for the project.
Western also proposes to comply with all state water quality standards while operating the project. In this environmental assessment (EA), we consider Western's proposal to comply with state water quality standards (i.e., state law) to be a general legal matter rather than a specific environmental measure.
In addition to Western's proposed action, this EA considers Western's proposed action with staff's modifications (staff alternative), and a no-action alternative. Under the staff alternative, the project would be constructed, operated, and maintained as proposed by Western. The staff alternative also includes a recommendation for Western to develop and implement an operation compliance monitoring plan for proposed run-of-river operations at the project. Under the no-action alternative, a license would be denied and Western would not construct and operate the project.
Before filing its license application, Western conducted pre-filing consultation under the traditional licensing process. The intent of the Commission's pre-filing process is to initiate public involvement early in the project planning process and to encourage citizens, governmental entities, tribes, and other interested parties to identify and resolve issues prior to an application being formally filed with the Commission.
Western filed its license application on October 21, 2011. On April 24, 2012, the Commission issued a notice accepting the license application; soliciting motions to intervene, protests, comments, terms and conditions, recommendations, and prescriptions; stating that the application was ready for environmental analysis; stating staff's intent to waive scoping; and establishing an expedited schedule for processing. The notice explained that staff intended to waive scoping due to the project's use of an existing dam, the limited scope of proposed construction at the project site, the applicant's close coordination with federal and state agencies during the preparation of the application, and the completion of studies during pre-filing consultation. The United States Department of the Interior (Interior) was the only entity that filed a written response to the notice. Interior stated that it had no comments.
The primary issues associated with licensing the project are the potential for project effects on soil erosion and sedimentation, water quality and fish entrainment.
Project construction would require the excavation of approximately 135 cubic yards of bedrock during the construction of the proposed powerhouse and forebay. To minimize the potential for erosion and sedimentation related to the excavation, under the applicant's proposal and staff alternative, Western would develop and implement an erosion and sediment control plan.
Under the proposed action and the staff alternative, developing and implementing an erosion and sediment control plan would limit erosion, sedimentation, and increases in river turbidity.
Under the proposed action and staff alternative, fish could be entrained through the project's trashrack and intake, and therefore, be subjected to turbine mortality during operation of the project. However, the amount of entrainment and turbine mortality would likely be small and result in an overall minimal adverse effect on the project reservoir's (Angelo Pond's) fish community.
Under both the proposed action and staff alternative, run-of-river operation would maintain current aquatic resource habitats in Angelo Pond and in the La Crosse River downstream of the Angelo dam.
While some grassy areas may be temporarily disturbed and soils slightly compacted by the movement of equipment and personnel during construction, no long-term adverse effects to terrestrial resources are anticipated, as the construction area would be relatively small, and occur in an area that has been previously disturbed. Also, the project site is fairly developed and lacks quality habitat for wildlife.
Two federally listed species are known to occur in Monroe County, namely the Karner blue butterfly (
Western conducted cultural resource surveys, covering about 83 percent of the land within the project's area of potential effects (APE). During the surveys, Western found no archaeological resources that would be eligible for the National Register of Historic Places (National Register). For the unsurveyed areas, an executed PA and HPMP contain protocols that would be implemented if there are any unanticipated discoveries. The HPMP also contains provisions to lessen, avoid, or mitigate for any adverse effects if the discovered resources are eligible for the National Register.
Under the no-action alternative, a license would be denied, the project would not be constructed, environmental resources in the project area would not be affected, and the renewable energy that would be produced by the project would not be developed.
Based on our analysis, we recommend licensing the project under the staff alternative.
In section 4.0 of the EA, we estimate the likely cost of alternative power for the two action alternatives identified above. Our analysis shows that during the first year of operation under the proposed action alternative, project power would cost $81,589 or $86.20/MWh less than the likely alternative cost of power. Under the staff alternative, project power would cost $81,297 or $85.47/MWh less than the likely alternative cost of power.
We chose the staff alternative as the preferred alternative because: (1) The project would provide a dependable source of electrical energy for the region (about 950 MWh annually); (2) the 205 kW of electric capacity available comes from a renewable resource which does not contribute to atmospheric pollution; and (3) the recommended environmental measures proposed by Western, as modified by staff, would adequately protect and enhance environmental resources affected by the project. The overall benefits of the staff alternative would be worth the cost of the proposed and recommended environmental measures.
We conclude that issuing an original license for the project, with the environmental measures we recommend, would not constitute a major federal action significantly affecting the quality of the human environment.
On October 21, 2011, Western Technical College (Western) filed an application with the Federal Energy Regulatory Commission (Commission) for an original, minor license to construct, operate, and maintain the proposed 205-kilowatt (kW) Angelo Dam Hydropower Project No. 13417-002 (Angelo Dam Project or project). The project would be located on the La Crosse River in the Township of Angelo, Monroe County, Wisconsin at an existing dam (the Angelo dam) owned by Monroe County and regulated by the Wisconsin Department of Natural Resources (Wisconsin DNR). The estimated average annual project generation is 948.5 megawatt-hours (MWh). The proposed project would not occupy federal lands.
The purpose of the proposed Angelo Dam Project is to provide a new source of hydroelectric power. Therefore, under the provisions of the Federal Power Act (FPA), the Commission must decide whether to issue a license to Western for the Angelo Dam Project and what conditions should be placed on any license issued. In deciding whether to issue a license for a hydroelectric project, the Commission must determine that the project will be best adapted to a comprehensive plan for improving or developing a waterway. In addition to the power and developmental purposes for which licenses are issued (such as flood control, irrigation, or water supply), the Commission must give equal consideration to the purposes of: (1) Energy conservation; (2) the protection of, mitigation of damage to, and enhancement of fish and wildlife resources; (3) the protection of recreational opportunities; and (4) the preservation of other aspects of environmental quality.
Issuing an original license for the Angelo Dam Project would allow Western to generate electricity for the term of an original license, making electric power from a renewable resource available to its customers.
This environmental assessment (EA) assesses the effects associated with Western's proposed operation of the project and alternatives to the proposed project. The EA also makes recommendations to the Commission on whether to issue an original license, and if so, what terms and conditions should become a part of any license issued.
In this EA, we assess the environmental and economic effects associated with the construction and operation of the project: (1) as proposed by Western; and (2) with staff's additional recommended measures. We also consider the effects of the no-action alternative. Important issues that are addressed include the potential for project effects on geology and soils, and aquatic, terrestrial, and cultural resources.
The proposed Angelo Dam Project would provide hydroelectric generation to meet part of Wisconsin's power requirements, resource diversity, and capacity needs. The project would have an installed capacity of 205 kW and generate about 950 MWh per year.
The North American Electric Reliability Council (NERC) annually forecasts electrical supply and demand nationally and regionally for a 10-year period. The Angelo Dam Project is located in the Midwest Independent System Operator (MISO) sub region of the Midwest Reliability Organization (MRO) region of the NERC. According to NERC's 2011 forecast, average annual demand requirements for the MISO sub region are projected to grow at a rate of 2.9 percent from 2011 through 2021. MISO projects that resource capacity margins (generating capacity in excess of demand) will range between 15.2 percent and 23.2 percent of firm peak demand during the 10-year forecast period, including estimated new capacity additions. Over the next 10 years, MRO estimates that about 4,894 megawatts (MW) of additional capacity will be brought on line.
We conclude that power from the Angelo Dam Project would help meet a need for power in the MISO sub-region in both the short and long-term. The project would provide low-cost power that displaces generation from non-renewable sources. Displacing the operation of non-renewable facilities may avoid some power plant emissions, thus creating an environmental benefit.
A license for the proposed project is subject to numerous requirements under the Federal Power Act (FPA) and other applicable statues. The major statutory and regulatory requirements are summarized in table 1 and described below.
Section 18 of the FPA, 16 U.S.C. 811, states that the Commission is to require construction, operation, and maintenance by a licensee of such fishways as may be prescribed by the Secretaries of Commerce or the Interior.
No fishway prescriptions, or requests for reservation of authority to prescribe fishways under section 18 of the FPA, have been filed.
Under section 10(j) of the FPA, 16 U.S.C. 803(j), each hydroelectric license issued by the Commission must include conditions based on recommendations provided by federal and state fish and wildlife agencies for the protection, mitigation, or enhancement of fish and wildlife resources affected by the project. The Commission is required to include these conditions unless it determines that they are inconsistent with the purposes and requirements of the FPA or other applicable law. Before rejecting or modifying an agency recommendation, the Commission is required to attempt to resolve any such inconsistency with the agency, giving due weight to the recommendations, expertise, and statutory responsibilities of such agency.
No federal or state fish and wildlife agency filed recommendations pursuant to section 10(j) of the FPA.
Under section 401(a) of the Clean Water Act (CWA), 33 U.S.C. 1341(a)(1) a license applicant must obtain certification from the appropriate state pollution control agency verifying compliance with the CWA. On January 20, 2011, Western applied to the
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1536(a), requires federal agencies to ensure that their actions are not likely to jeopardize the continued existence of federally listed threatened and endangered species, or result in the destruction or adverse modification of their designated critical habitat. There are no federally listed threatened and endangered species or designated critical habitat in the immediate project area that would be affected by the construction and operation of the proposed project. Therefore, the proposed project would have no effect on federally listed species.
The Coastal Zone Management Act (CZMA) of 1972, as amended, requires review of the project's consistency with a state's Coastal Management Program for projects within or that would affect the coastal zone. Under section 307(c)(3)(A) of the CZMA, 16 U.S.C. 1456(3)(A), the Commission cannot issue a license for a project within or affecting a state's coastal zone unless the state's coastal zone management agency concurs with the license applicant's certification of consistency with the state's Coastal Management Program, or the agency's concurrence is conclusively presumed by its failure to act within 180 days of its receipt of the applicant's certification.
The project is not located within the state-designated coastal management zone, and the project would not affect Wisconsin's coastal resources. Therefore, the project is not subject to Wisconsin's coastal zone program review and no consistency certification is needed for the action. By correspondence dated April 12, 2012 (filed on April 13, 2012), Wisconsin's Department of Intergovernmental Relations, Coastal Management Program Office, concurred with this determination.
Section 106 of the NHPA, 16 U.S.C. 470, requires that every federal agency “take into account” how each of its undertakings could affect historic properties. Historic properties are districts, sites, buildings, structures, traditional cultural properties, and objects significant in American history, architecture, engineering, and culture that are eligible for inclusion in the National Register of Historic Places (National Register).
To meet the requirements of section 106 of the NHPA, on December 16, 1993, Commission staff executed a Programmatic Agreement (PA) with the Wisconsin SHPO and Michigan SHPO. The PA contains principals and procedures for the protection of historic properties from the effects of the proposed construction and operation of hydroelectric projects in the state of Wisconsin and adjacent portions of the Upper Peninsula of Michigan. The terms of the PA ensure that Western addresses and treats all historic properties identified within the project's area of potential effects (APE) through implementation of the historic properties management plan (HPMP) entitled,
The Commission's regulations, 18 CFR 4.38 and 16.8, require that applicants consult with appropriate resource agencies and other entities before filing an application for a license. This consultation is the first step in complying with the Fish and Wildlife Coordination Act, ESA, NHPA, and other federal statutes. Pre-filing consultation must be complete and documented according to the Commission's regulations.
Due to the location of the proposed project, the minor nature of environmental effects, and the lack of response to our public notice regarding the project,
On April 24, 2012, the Commission issued a notice accepting Western's license application and asking for motions to intervene and protests. The U.S. Department of the Interior (Interior) was the only entity that filed a written response to the notice. Interior filed a letter with the Commission on June 20, 2012, stating that it had no comments. No motions to intervene were filed.
The no-action alternative is license denial. Under the no-action alternative, the project would not be built, environmental resources in the project area would not be affected, and the renewable energy that would be produced by the project would not be developed.
The proposed hydropower project would generate electricity using the head created by the existing Angelo dam which is currently owned by Monroe County.
The Angelo dam is an earthen embankment with a maximum height of 14 feet and a spillway with a short non-overflow section. The dam has a total length of 615.5 feet. The spillway and a short non-overflow section are constructed of reinforced concrete and have a total length of 91.5 feet. The spillway is 72.42 feet long, 9.6 feet high from the foundation level to its crest, and contains four, 13.5-foot-wide by 11.4-foot-high bays each with 13.5-foot-wide by 6.9-foot-high steel tainter gates. The non-overflow section is 19.08 feet long, 20 feet high, and 19.7 feet wide and would be converted to serve as the project's intake after removing the concrete cap and plug that was poured in 1998 when the dam was rehabilitated.
In addition to the dam, the proposed project would consist of the following new elements: (1) A 22.84-foot-long by 16.08-foot-wide trashrack with 2-inch-clear bar spacing installed at the intake in the non-overflow section; (2) a 20-foot by 20-foot by 20-foot reinforced concrete box forebay; (3) a 26-foot-long by 24.5-foot-wide by 40-foot-high powerhouse located at the right abutment of the dam containing a 205-kW vertical, double-regulated Kaplan turbine; (4) a 30-foot-long, 480-volt overhead transmission line connecting the powerhouse generator to a step-up transformer that would be located on a pole which is part of Northern States Power's 2.7-kilovolt distribution line; and (5) appurtenant facilities. The estimated annual project generation is about 950 MWh.
The reservoir, referred to locally as Angelo Pond, has a surface area of 52 acres and a gross storage of 450 acre-feet at normal water elevation 793-feet mean sea level (msl). The project boundary, with a total area of 79.38 acres, includes
As part of the licensing process, the Commission would prepare a Safety and Design Assessment covering the adequacy of the project facilities. Special articles would be included in any license issued, as appropriate. Operational inspections would focus on the continued safety of the structures, identification of unauthorized modifications, efficiency and safety operations, compliance with the terms of the license, and proper maintenance.
The dam and reservoir currently provide recreational benefits to the project area. There is currently no hydroelectric generation at the dam. The dam is operated manually in a run-of-river mode (i.e., an operating mode where outflows from the dam and reservoir approximate inflows to the reservoir).
The proposed project would be operated in an automatic, run-of-river mode using the 17 feet of head created by the existing Angelo dam. The automatic mode would be achieved by use of a head pond elevation gage that would allow the project to operate within a foot from the maximum pond elevation of 793.6 msl. When the reservoir elevation exceeds 793.6 msl, the tainter gates would be opened to release flow under the gates to maintain a target pond elevation between 793.0 and 793.6 msl, the normal operating elevation range for the project.
The headpond has a maximum storage capacity of 450 acre-feet at elevation 793.0 msl (top of the tainter gates). The estimated plant hydraulic capacity is 168 cubic feet per second (cfs) at full load and 32 cfs at minimum load. The water used for project generation would flow through the proposed trashracks and the new opening in the dam, continuing through an old penstock and the proposed forebay, into the powerhouse. The flow out of the powerhouse would discharge into the existing pool immediately downstream of the dam. Flows that exceed the project's maximum hydraulic capacity would be discharged over or under the dam spillway tainter gates. Currently, the spillway gates are opened manually, but the applicant would automate them to provide opening information as part of the proposed Supervisory Control and Data Acquisition (SCADA) system to be installed prior to project operation. SCADA would monitor and control the powerplant from a central location. The project would be run automatically with the help of water surface elevation controls. Maintenance staff would visit the facility regularly, as well as during
Western proposes to incorporate the following environmental measures into the design, operation, and maintenance of the proposed project:
• Developing and implementing an erosion and sediment control plan with provisions for using best management practices (BMP), including installing a temporary inflatable cofferdam, and placing hay bales and siltation fabric at locations where sediment-laden runoff could otherwise enter project waters or adjacent non-project lands;
• Operating the project in a run-of-the-river mode to minimize impacts on water quality and quantity, and fish and aquatic resources; and
• Implementing the PA, executed on December 16, 1993, and the HPMP, filed on October 21, 2011, and amended by letter filed on June 14, 2012.
Western also proposes to comply with all state water quality standards while operating the project. We consider this proposal to comply with state law to be a general legal matter, rather than a specific environmental measure.
Under the staff alternative, the project would include Western's proposed environmental measures. Because Western's proposal to comply with state water quality laws is a general legal matter, we do not adopt it as an environmental measure under the staff alternative. We note, however, that below in section 3, we do assess the effects of proposed project construction and operation on water quality, including the need for specific environmental measures to mitigate any adverse water quality effects. The staff alternative also includes a condition to implement an operation compliance monitoring plan, to verify proposed run-of-river operations at the project.
In this section, we present: (1) A general description of the project vicinity; (2) an explanation of the scope of our cumulative effects analysis; and (3) our analysis of Western's proposed actions and other recommended environmental measures. Sections are organized by resource area (e.g., aquatics, terrestrial, etc.). Under each resource area, historic conditions are first described. The existing condition is the baseline against which the environmental effects of Western's proposed actions and alternatives are compared, including an assessment of the effects of Western's proposed mitigation, protection, and enhancement measures, and any potential cumulative effects of Western's proposed actions and alternatives. Staff conclusions and recommended measures are discussed in section 5.2,
The Angelo Dam Project would be located on the La Crosse River, near Angelo Township, in Monroe County, Wisconsin. The La Crosse River flows from north central Monroe County in a southwesterly direction for approximately 64 miles before reaching the Mississippi River. The La Crosse River exists entirely within the Bad Axe—La Crosse River Basin (basin), and the project area is located more specifically, in the Upper La Crosse River Watershed (watershed) where Silver Creek enters the La Crosse River (figures 3 and 4). The watershed has a drainage area of approximately 126 square miles, more than half of which is located in the Fort McCoy Military Reservation (Wisconsin DNR, 2002b).
Several dams are located on the La Crosse River, including: (1) Hazel Dell dam, forming a 2-acre reservoir; (2) Alderwood dam, forming an 11-acre reservoir; (3) Angelo dam, the location of the proposed project, forming a 52-acre reservoir; (4) Perch Lake dam, forming a 33-acre reservoir; and (5) the Lake Neshonoc dam,
According to the Council on Environmental Quality's regulations for implementing the National Environmental Policy Act (NEPA), 40 CFR 1508.7, a cumulative effect is the effect on the environment which results from adding the effects of a proposed action to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time, including hydropower and other land and water development activities.
Based on our review of the license application, no environmental resources would be cumulatively affected by licensing the Angelo Dam Project. The project is located in a rural area, with very little existing or planned future developmental activity. While several other dams, both with and without hydropower facilities, are located on the La Crosse River, the run-of-river operating regime proposed by Western would maintain reservoir levels and flows consistent with existing conditions. As such, operation of the project would not affect reservoirs either upstream or downstream of Angelo dam.
In this section, we discuss the effects of the project alternatives on environmental resources. For each resource, we first describe the affected environment, which is the existing condition and baseline against which we measure effects. We then discuss and analyze the site-specific environmental issues.
Only the resources that would be affected are addressed in this EA. Based on this, we have determined that geology and soils, and aquatic, terrestrial, and cultural resources may be affected by the proposed action and action alternatives. We have not identified any substantive issues related to recreation, land use, aesthetics, or socioeconomic resources. We present our recommendations in section 5.1,
The proposed project is located in an unglaciated region of Wisconsin characterized by an upper layer of limestone, eroded over time, followed by a layer of Potsdam sandstone surface rock. The Potsdam sandstone layer of this western upland region is about 800 to 900 feet thick, and is Cambrian to Lower Silurian-aged. Below this layer is Archaean-age basement rock, namely highly metamorphic gneiss, granite, and schists. The basin is mostly composed of sand and clay deposits with a very shallow, gradual slope. Soils in the project area are poorly drained and level, classified as sands of the Dawson Peat and Newson sandy loam variety. These soil types are potentially erodible, although several areas along the river are protected by concrete retaining walls or rip rap.
Land-disturbing activities associated with construction of the proposed project primarily involve development of the powerhouse and forebay. The combined footprint of the powerhouse and forebay is approximately 740 square feet (20 feet by 37 feet), and would require about 135 cubic yards of excavation along the right (west) embankment. This area is usually dry and consists primarily of exposed bedrock with little to no soil. Western is not proposing to alter the slope or drainage patterns at the project.
To minimize the potential for erosion related to project construction, Western proposes to: (1) Develop and implement an erosion and sediment control plan; (2) install an inflatable cofferdam; and (3) use hay bales and siltation fabric. Western would use excavated material as riprap along the river embankments. Western also states that Wisconsin DNR and Monroe County's shoreland zoning program both require approval of erosion control methods.
Heavy equipment would be limited to cranes sitting on the right embankment, and no access via the river bank is anticipated. The embankment in this area is also protected by a retaining wall. Less than 0.5 acre of land adjacent to the west side of the dam would be used as a staging area, as equipment and materials would generally be delivered on site from storage buildings on the Sparta Campus of the Technical College, which is located across the street from the construction area.
Project construction would require some ground-disturbance, though most of this material would be rock, as opposed to soil. The area of disturbance is relatively small and the new powerhouse would occupy roughly the same footprint as the original one, which was removed in 1968. The staging area and heavy equipment use would be located on lands that are paved, or covered with grass, reducing the likelihood of significant soil movement. Further, the control measures and BMPs proposed by Western would minimize any potential erosion and sedimentation.
Consultation with the Wisconsin DNR and Monroe County would further ensure that proper control measures are used, and any project effects would be mitigated. As the project would be operated run-of-river, and the reservoir elevation would vary by less than 1 foot, it is unlikely that the project's operating regime would affect the occurrence of erosion or sedimentation over the course of any license issued.
The headwaters of the La Crosse River originate in Monroe County northeast of the proposed project near the Fort McCoy Military Reservation. The La Crosse River flows in a southwesterly direction for about 64 miles through Monroe and La Crosse counties before reaching the Mississippi River. Five dams on the La Crosse River create Lake Neshonoc in West Salem, Perch Lake in Sparta, Angelo Pond in the Town of Angelo, and Alderwood Lake and Hazel Dell Pond both of which lie within the Fort McCoy Military Reservation. The Angelo dam is located approximately 5 miles south of Fort McCoy's main post entrance. The drainage area of the dam site is about 115 square miles.
The Angelo dam forms a 52-acre reservoir known locally as Angelo Pond. Table 2 details the specific physical characteristics of Angelo Pond.
Downstream of the Angelo dam, the La Crosse River flows south 2.5 miles to the city of Sparta, Wisconsin where the USGS gauge station #05382325 is located. The period of record for gauge 05382325 is from July 1992 to present. Table 3 shows the mean monthly discharge rate (cfs) for the La Crosse River for the period of record. The La Crosse River has a continuous, steady discharge flow of 100-200 cfs
The La Crosse River in the area of the proposed project is relatively shallow. Figure 5 depicts the La Crosse River depth at gauge 05382325, located 2.5 miles downstream of the Angelo dam. River depths increase during periods of high discharge (April-June).
The Wisconsin DNR has determined the La Crosse River at the Angelo dam to be a “Fish and Aquatic Life Use of a Cold Water Community”. The Wisconsin DNR further breaks down cold water communities, and recognizes the La Crosse River as a “Coldwater Category 5.” This coldwater category includes inland trout waters with brook and brown trout, but no whitefish, cisco, or other trout or salmonid species. The water classification and standards for Wisconsin water quality parameters are as follows:
The existing fish and aquatic communities include coldwater, freshwater fish such as brook and rainbow trout throughout the La Crosse River. Trout are present in Angelo Pond; however, no anadromous species inhabit the La Crosse River or Angelo Pond. Due to the size and shallow depth of Angelo Pond, it is seasonally a warm-water surface source, with warm-water fish species present during those times. Angelo Pond has regularly been stocked with largemouth bass and rainbow trout since 1984, and is listed as an impaired waterway on the Wisconsin Impaired Water List.
Based on the Wisconsin DNR Trout Stream Classification, the La Crosse River upstream of Angelo Pond is a Class II trout stream. A Class II trout stream is categorized as having some natural reproduction, but not enough to utilize available food and space. Therefore, stocking is required to maintain a desirable sport fishery. These streams have good survival and carryover of adult trout, often producing some fish larger than average size. Angelo Pond is upstream 5 miles from Perch Lake, and both surface water bodies are connected by the La Crosse River. The segment of the La Crosse River between Angelo Pond and Perch Lake is classified as a Class III trout stream. Class III trout streams are categorized by waters with marginal trout habitat, and no natural reproduction. Annual stocking of trout is required to provide for trout fishing, and there is generally no carryover of trout from one year to the next.
According to the Wisconsin DNR, Angelo Pond impounds the La Crosse River where Silver Creek enters the river. Both streams traverse Fort McCoy Military Installation, for a significant amount of their length. The La Crosse River contains a sand bottom, which is slowly filling Angelo Pond. This reservoir also slows the river's current down enough to allow fine sediment to settle out. These fine sediments in Angelo Pond maintain a robust aquatic plant community.
Western proposes to operate the proposed project in a run-of-river mode to minimize the impacts on water quality and quantity, and fish and aquatic resources. Western also proposes to operate the project to ensure discharges from the project meet state water quality standards during project operation, construction, and maintenance.
DO, water temperature, and pH, 2.5 miles downstream of the proposed project, are at levels in the La Crosse River that are currently consistent with the levels specified by Wisconsin state water quality standards.
The proposed project design and operation would not interfere with the flow of water downstream of the Angelo dam since the proposed project will operate run-of-river. Water will continue to be discharged at the foot of the dam or flow either over or under the existing tainter gates. The run-of-river operations proposed by Western should ensure that project operation would not change current DO, water temperature, or pH levels in the La Crosse River.
However, with the construction activities at the Angelo dam there is a potential to temporarily increase river turbidity, which would reduce water quality relative to existing conditions. Implementing a short-term erosion and sediment control plan that incorporates, at a minimum, the BMPs discussed in section 3.3.1,
Operation compliance monitoring is a standard requirement in all Commission-issued licenses. Development and implementation of an operation compliance monitoring plan and schedule would be beneficial in this instance in that it would document the procedures Western Technical College would employ to demonstrate compliance with its proposed project operations.
Water intake structures at hydropower projects can injure or kill fish that are entrained through turbines. Typically, fish injury or mortality is caused by fish being struck by turbine blades, or being exposed to pressure changes, sheer forces in turbulent flows, and water velocity accelerations (Knapp et al., 1982). Fish vulnerability to entrainment relates to powerhouse and spillway operations, fish sizes, movement patterns, swimming speeds, approach
Tables 5 and 6 show typical sustained, prolonged, and burst swim speeds for fish species commonly found in the project area. Most juvenile and adult game fish burst speeds exceed the average approach velocity of 0.5 feet per second (fps) that would occur in front of the project's intake, suggesting that most life stages of most reservoir species would be able to escape from velocities near, and at, the intake face and thereby avoid entrainment.
For smaller reservoir fish that would pass through the intake, we expect turbine mortality to be relatively minor. We note that at Wisconsin hydroelectric projects where entrainment studies have been conducted, small fish (less than 4 inches long) accounted for 79 percent of fish entrained during the field studies (Electric Power Research Institute, or EPRI, 1997). Due to their small size, the vast majority of small fish from the study survived turbine passage into downstream aquatic habitats. The survival of these smaller fish was relatively high, because they were less prone to mechanical injury from turbine passage than larger fish. Smaller fish also are less prone to injury resulting from shear stresses and rapid pressure changes. Therefore, it is likely that the majority of the entrained fish would be composed of the poorest swimmers (i.e., very small fish), and most of these fish would survive turbine passage.
In addition to entrainment effects, fish can become impinged on the bars of a trashrack if they are not able to overcome the approach velocity and are not able to pass between the trashrack bars due to their larger body size. Lawler et. al. (1991) developed an equation to determine minimum fish length protected by a trashrack or screen. The equation is TL=10
Based on the results of the studies conducted by Lawler et. al (1991), we calculate that the trashrack's 2-inch spacing between the trashrack's bars would generally not allow passage of brown trout greater than 15.4 inches total length, black crappie greater than 20.3 inches total length, and yellow perch greater than 22.4 inches total length. The average velocity in front of the trashrack would be approximately 0.5 fps. Brown trout larger than 15.4 inches, black crappie larger than 20.3 inches, yellow perch larger than 22.4 inches are in the adult life stage. Table 5 shows that a juvenile black crappie is capable of a burst swim speed 1-2 fps. Table 6 shows that an adult brown trout is capable of a sustained swimming speed of 7.0-7.8 fps with a burst swim speed of 12.2-12.8 fps. Since burst speeds are typically short in duration (1-3 seconds), a brown trout could burst ahead of the trashrack's influence and swim at a sustained speed safely in front of the trashrack. Therefore, impingement at the project would not be likely as most of the fish that are large enough to be subject to impingement, such as adult brown
To summarize, we conclude that the overall effect on the fishery due to entrainment and turbine mortality would be minimal. We also conclude that impingement of fish on the project's trashrack would be unlikely.
The Bad Axe-La Crosse Basin is characterized by steep slopes and narrow river valleys, which is a distinctive attribute of the Coulee ecoregion. Much of the land in the basin is used for agriculture, particularly for beef and dairy farms. Outside of agricultural lands, vegetation in the basin consists of oak forest and savanna, grassland prairie, and bottom hardwoods (Wisconsin DNR, 2002a). Most of the forests in the basin are oak-hickory (56 percent), followed by elm-ash-cottonwood (16 percent), maple-ash-basswood (16 percent), aspen-birch (8 percent), and pine (4 percent). This habitat supports a wide variety of wildlife species including wild turkey, Cooper's hawk, ovenbird, blue jay, brown snake, bull snake, gray tree frog, white-tailed deer, gray squirrel, and gray fox. Avian species known to occur within the project site include: several species of songbirds, waterfowl (e.g., geese, herons, and ducks), birds of prey (i.e. hawks and owls), and other common species (e.g., crows and black birds).
Wetlands in the basin account for approximately 2 percent of the total land area, with about 4,000 acres in the Upper La Crosse River watershed. While no wetlands appear to be present adjacent to the dam or project facilities, palustrine scrub-shrub and palustrine forested wetlands are located in the vicinity of the project (1) to the north and east of the upper half of the reservoir, as well as (2) downstream of the dam. Some freshwater emergent (marsh) habitat is also located near the northeastern section of Angelo Pond. Upland vegetation in the immediate vicinity of the proposed project includes mostly grasses, sedges, and shrubs. As several residential homes are located around the reservoir, some of the shoreline areas near and around Angelo Pond are maintained as lawns.
Several species of invasive plants are known to occur in Monroe County, including Canada thistle, garlic mustard, Japanese knotweed, common reed, and purple loosestrife, to name a few. The only species known to occur in Angelo Pond according to the Wisconsin DNR, is curly-leaf pondweed (
Staff review of the FWS (2012a) endangered species list found that the following threatened and endangered (T&E) species are known to occur in Monroe County: the Karner blue butterfly (
Northern monkshood is a threatened species found only in Iowa, Wisconsin, Ohio, and New York. Northern monkshood is often found on shaded to partially shaded cliffs, algific talus slopes,
As discussed in section 3.3.1,
Access to the project works would be from the existing cul-de-sac near the west side of the dam and created during the realignment of the old Highway 21. The cul-de-sac is approximately 130 feet west of the project works. Limited staging of equipment during project construction would occur on 0.5 acre of land, with most of the necessary equipment stored off-site.
While some grassy areas may be temporarily disturbed and soils slightly compacted by the movement of equipment and personnel during the construction of the proposed project, no long-term adverse effects to terrestrial resources are anticipated. The construction area would be relatively small, and would occur over an area that has been previously disturbed, due to changes in land use over time (e.g., sawmill, installation and subsequent removal of the former powerhouse). The dam is located in an area with a fair amount of development, including Highway 21, the Sparta Campus of Western Technical College, some residential development, and the Fort McCoy Military Reservation. As such, the project site is lacking in high quality habitat for wildlife. While there may be some noise associated with the ground-disturbing activities that could temporarily deter some species, any impacts would be minor and short-term.
While curly-leaf pondweed was found in Angelo Pond in 2006, all ground-disturbing activities are happening in the dry, away from the impoundment. Further, the water levels in the reservoir will not change and as such project operations would likely have no effect on any existing pondweed populations. The wetlands in the vicinity of the project are also located well outside of the construction zone and would not be otherwise affected by project operation due to the proposed run-of-river operating regime.
Karners rely primarily on the presence of wild lupine (
The algific talus slopes required by northern monkshood are rare communities with steep, fractured limestone slopes that retain ice throughout the growing season. These slopes support mountain maple (
To summarize, because there are no Karners, northern monkshood, nor habitat for either species within the project area, project construction and operation would have no effect on these species.
Under section 106 of the NHPA, the Commission must take into account whether any historic property within the project's APE could be affected by the issuance of a license. The APE is defined as the geographic area in which an undertaking may directly or indirectly cause alterations in the character or use of a historic property, if any such property exists. In this case, the APE for the project is the proposed project boundary.
The earliest evidence of Native American occupation in Wisconsin dates to the Paleo-Indian period (10,000-8500 B.C.). Occupation continued through the Archaic (8,000-1,000 B.C.), Woodland (1000-300 B.C.), and Mississippian periods (A.D. 900-1600). Upon European contact, much of Wisconsin, including the project area, was occupied by the Ho-Chunk. Beginning in 1840, there were a series of forcible relocations throughout the state, which resulted in the Ho-Chunk being moved to lands west of the Mississippi River. The forcible relocations continued until 1875, at which time a majority of the remaining Ho-Chunk were relocated to Monroe and Jackson counties, Wisconsin.
European settlement in Monroe County occurred in 1842. Between 1852 and 1854, Dr. Seth Angle built a dam and sawmill at the site of the current Angelo dam. The sawmill prospered, and the village of Athens was settled around the mill and dam in 1856. The village's name was later changed to Angelo. By the 1900's, the population of Angelo had declined because of the high price of land and because the railroad did not travel by the town.
In 1897, the sawmill was converted into the Sparta Electric Plant. The Wisconsin-Minnesota Light and Power Company purchased the plant, and in 1920, rebuilt the dam. In 1947, Northern States Power Company bought the facility, and in 1968 refurbished the dam and demolished the powerhouse. In 1969, Northern States Power Company ceased operation of the facility. In 1998, the refurbished dam was demolished, and Angelo dam was constructed in its place (Salkin, 2011).
A phase I survey of the APE, conducted in 2010, revealed no surface or sub-surface archaeological resources, Euro-American artifacts, or buildings or structures that would be eligible for the National Register. The existing Angelo dam is not eligible for the National Register, because it is less than 50 years old.
A portion of the APE to be surveyed was inaccessible during the initial survey; therefore, a second phase I survey was conducted in March and April of 2012. No surface or sub-surface archaeological resources were discovered during the second survey. In total, the two surveys covered about 87 percent of the APE. The Wisconsin SHPO, in letters filed on October 21, 2011, and June 14, 2012, concurred with the two surveys' findings.
Proposed project construction and operation may affect unknown historic properties within the APE. The executed PA requires that every proposed hydroelectric project in Wisconsin develop an HPMP to avoid, lessen, or mitigate for any adverse effects on both identified and unidentified historic properties within the APE. To address any potential adverse effects on unidentified historic properties,
Western conducted two cultural resource surveys, but was unable to survey about 17 percent of the land within the project's APE. In these unsurveyed areas, project operations could adversely affect unknown archaeological resources that could be eligible for the National Register. Also during project construction or operation, unknown archaeological sites or human remains may be discovered. The proposed HPMP contains protocols and procedures to adequately address any unanticipated discoveries during future surveys or proposed project construction and operation. Also the proposed HPMP contains provisions to lessen, avoid, or mitigate for any adverse effects if the discovered properties are eligible for the National Register or if human remains are discovered.
We anticipate that any effects on unknown historic properties would be taken into account through the executed PA and the proposed HPMP. The documents would ensure that any adverse effects on historic properties within the APE would be resolved.
Under the no action alternative, a license for the project would not be issued and the Angelo Dam Project would not be constructed. There would be no changes to the physical, biological, or cultural resources in the area, and there would be no hydroelectric generation at the dam to contribute to the regional need for power.
In this section, we look at Western's use of the La Crosse River for hydropower purposes to see what effects various environmental measures would have on the projects' costs and
For each of the licensing alternatives, our analysis includes an estimate of: (1) The cost of individual measures considered in the EA for the protection, mitigation and enhancement of environmental resources affected by the project; (2) the cost of alternative power; (3) the total project cost (i.e., for construction, operation, maintenance, and environmental measures); and (4) the difference between the cost of alternative power and total project cost. If the difference between the cost of alternative power and total project cost is positive, the project produces power for less than the cost of alternative power. If the difference between the cost of alternative power and total project cost is negative, the project produces power for more than the cost of alternative power. This estimate helps to support an informed decision concerning what is in the public interest with respect to a proposed license. However, project economics is only one of many public interest factors the Commission considers in determining whether, and under what conditions, to issue a license.
Table 8 summarizes the assumptions and economic information we use in our analysis. This information was provided by Western in its license application and subsequent submittal. We find that the values provided by Western are reasonable for the purposes of our analysis. Cost items common to all alternatives include: Taxes and insurance costs; estimated capital investment required to develop the project; licensing costs; normal operation and maintenance cost; and Commission fees.
The Angelo Dam Project would have an installed capacity of 205 kW and would generate an average of 948.5 MWh annually. Table 8 includes an energy value of $90/MWh which is the price at which Western would sell the project power to Northern States Power as agreed in a Power Purchase Agreement between the two entities.
Table 9 summarizes the installed capacity, annual generation, cost of alternative power, estimated total project cost, and difference between the cost of alternative power and total project cost for each of the alternatives considered in this EA: no-action, the applicant's proposal, and the staff alternative.
Under the no-action alternative, the Angelo Dam Project would not be constructed and there would be no hydropower generation, costs, or benefits at this site.
Western proposes to construct a new hydropower facility at the existing Angelo dam. Upon completion of the construction, the proposed project would have a total installed capacity of 205 kW, a dependable capacity of 205 kW, and an average annual generation of 948.5 MWh. Additionally, Western proposes to implement the executed PA and an associated HPMP at a capital cost of $27,000 and an annual cost of $1,500, which is included in the total project cost of $1,376,000. In addition, Western proposes to develop and implement an erosion and sediment
The staff alternative includes the same developmental and environmental measures as Western's proposal and, therefore, would have the same capacity and energy attributes. In addition to applicant's environmental measures, staff recommends that Western develop and implement an operation compliance monitoring plan and schedule, for Angelo dam at a cost of $2,500 in capital expenditure.
Based on a total installed capacity of 205 kW, a dependable capacity of 205 kW, and an average annual generation of 948.5 MWh, the cost of alternative power would be $118,432, or about $124.86/MWh. The average annual project cost would be $36,663, or about $38.65/MWh. Overall, the project would produce power at a cost which is $81,297, or $85.471/MWh, less than the cost of alternative generation.
Western is proposing to implement the executed PA and associated HPMP at a capital cost of $27,000 and an annual cost of $1,500 which is included in the total project cost of $1,376,000. The costs associated with Western's proposal to develop and implement an erosion and sediment control plan, use BMPs, and operate the project in run-of-river mode, as stated above, are included in the total project costs. Staff is recommending that an operation compliance monitoring plan and schedule be developed at a capital cost of $2,500, to ensure compliance with the proposed run-of-river operating regime. We convert all costs to equal annual (levelized) values over a 30-year period of analysis to give a uniform basis for comparing the benefits of a measure to its cost. Staff's recommended operation compliance monitoring plan would add about $292 to the project cost, annually.
In this section, we compare the developmental and non-developmental effects of Western's proposal, Western's proposal as modified by staff, and the no-action alternative.
We estimate the annual generation of the project under the three alternatives identified above. Our analysis shows that the annual generation would be 948.5 MWh for the proposed action, 948.5 MWh for the staff alternative, and 0 MWh for the no-action alternative.
Sections 4(e) and 10(a) of the FPA require the Commission to give equal consideration to the power development purposes and to the purposes of energy conservation; the protection, mitigation of damage to, and enhancement of fish and wildlife; the protection of recreational opportunities; and the preservation of other aspects of environmental quality. Any license issued shall be such as in the Commission's judgment will be best adapted to a comprehensive plan for improving or developing waterway or waterways for all beneficial public uses. This section contains the basis for, and a summary of, our recommendations for licensing the Angelo Dam Project. We weigh the costs and benefits of our recommended alternative against other proposed measures.
Based on our independent review of the environmental and economic effects of the proposed project and its alternatives, we selected Western's proposal with staff's modifications as the preferred alternative. We recommend this alternative because: (1) Issuance of an original hydropower license by the Commission would allow the applicant to construct and operate the project as an economically beneficial and dependable source of electrical energy; (2) the 205 kW of electric capacity would come from a renewable resource which does not contribute to atmospheric pollution; (3) the public benefits of this alternative would exceed those of the no-action alternative; and (4) the recommended measures would protect, mitigate, and enhance environmental resources affected by building, operating, and maintaining the project.
Based on our environmental analysis of Western's proposal in section 3, and the costs presented in section 4, we conclude that the following environmental measures proposed by Western would protect and enhance environmental resources and would be worth the cost. Therefore, we recommend including these measures in any license issued for the project:
• Developing and implementing an erosion and sediment control plan with provisions for using BMPs, including installing a temporary inflatable cofferdam, and placing hay bales and siltation fabric at locations where sediment-laden runoff could otherwise enter project waters or adjacent non-project lands;
• Operating the project in a run-of-the-river mode to minimize impacts on water quality and quantity, and fish and aquatic resources; and
• Implementing the PA, executed on December 16, 1993, and the HPMP, filed on October 21, 2011, and amended by letter filed on June 14, 2012.
In addition to Western's proposed measures noted above, we recommend that Western develop and implement an operation compliance monitoring plan and schedule to monitor compliance with run-of-river operations. In section 3.3.2,
As noted in section 2.2.4, Western also proposes to comply with all state water quality standards while operating the project. We consider this proposal to comply with state law to be a general legal matter rather than a specific environmental measure, and therefore, do not adopt it as an environmental measure under the staff alternative. Nevertheless, in section 3, we analyzed the effects of proposed project construction and operation on water quality in the La Crosse River and concluded that with the exception of the potential for short-term, minor increases in turbidity during construction, Western's proposal to operate the project in a run-of-river mode would ensure that there would be no long-term adverse effects on water quality.
As discussed in section 3.3.1,
As discussed in section 3.3.2,
Under section 10(j) of the FPA, 16 USC 803(j), each hydroelectric license issued by the Commission must include conditions based on recommendations provided by federal and state fish and wildlife agencies for the protection, mitigation, or enhancement of fish and wildlife resources affected by the project.
No federal or state fish and wildlife agency filed recommendations pursuant to section 10(j) of the FPA.
Section 10(a)(2) of the FPA, 16 USC 803(a)(2)(A), requires the Commission to consider the extent to which a project is consistent with federal or state comprehensive plans for improving, developing, or conserving a waterway or waterways affected by a project. We reviewed three plans that are applicable to the project and found no inconsistencies.
On the basis of our independent analysis, the issuance of an original license for the Angelo Dam Project, as proposed, would not constitute a major federal action significantly affecting the quality of the human environment.
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 Wacker Polysilicon Project involving construction and operation of facilities proposed by East Tennessee Natural Gas, LLC (ETNG) in Bradley and Maury Counties, Tennessee. The Commission will use this EA 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 they need to evaluate in the EA. Please note that the scoping period will close on September 20, 2012. You may submit comments in written form. Further details on how to submit written comments are in the Public Participation section of this notice.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, 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.
ETNG provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?”. This fact sheet addresses a number of typically-asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
ETNG proposes to construct 2,800 feet of 8-inch-diameter natural gas pipeline that would extend from a new metering facility located on ETNG's existing 12-inch-diameter pipeline (3200-1) to a proposed new receiver station on the Wacker Polysilicon Plant property in Bradley County, Tennessee. The new pipeline would supply 5,700 Dekatherms per day (Dth/d) of natural gas to the Wacker Polysilicon facility which is currently being built under Tennessee Valley Authority (TVA) land use and 26A approval (TVA 2008-74). Also, in order to provide additional pressure and flow capacity in Line 3200-1, ETNG would install piping modifications and a pressure limiting device (relief valve) on Line 3200-1 in Maury County, Tennessee. The general location of the project facilities are shown in Appendix 1.
Construction of the Project pipeline would permanently affect a total of 1.86 acres of land in Bradley County for operation and maintenance of the proposed lateral pipeline and 0.61 acres combined in Bradley and Maury Counties for operation and maintenance of the proposed above ground facilities. ETNG would construct a total of 0.85 miles of two new access roads for construction and operation of project facilities and for access to the Wacker Polysilicon Plant.
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 proposed 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 reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section of this notice.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and 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 the Commission receives them in Washington, DC on or before September 20, 2012.
For your convenience, there are three methods which you can use to submit your comments to the Commission. In all instances please reference the project docket number (CP12-484-000) with your submission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically using the
(3) You can file a paper copy of your comments by mailing them to 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 proposed project.
If we publish and distribute the EA, copies will be sent to the environmental mailing list for public review and comment. If you would prefer to receive
In addition to involvement in the EA scoping process, 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 available on the Commission's Web site at
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 at
In addition, the Commission now 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
This is a supplemental notice in the above-referenced proceeding, of Emera Energy Services Subsidiary No. 10 LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of LVI Power, LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Emera Energy Services Subsidiary No. 7 LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Brookfield Smoky Mountain Hydropower LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 6, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Power Dave Fund LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 5, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Emera Energy Services Subsidiary No. 9 LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Emera Energy Services Subsidiary No. 8 LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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,
The filings in the above-referenced proceeding(s) 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
This is a supplemental notice in the above-referenced proceeding, of Emera Energy Services Subsidiary No. 6 LLC's application for market-based rate authority, with an accompanying rate schedule, 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 September 10, 2012.
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 Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) 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 on August 17, 2012, pursuant to Rule 207(a)(2) of the Commission's Rules of Practices and Procedure, 18 CFR 385.207(a)(2)(2012), Kinder Morgan Pony Express Pipeline LLC and Belle Fourche Pipeline Company, filed a petition seeking a declaratory order approving certain specified rate structures, services and prorationing terms, as more fully described in their petition.
Any person desiring to intervene or to protest in this 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. 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 Petitioner.
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 on August 13, 2012, pursuant to Rule 207(a)(2) of the Commission's Rules of Practices and Procedure, 18 CFR 385.207(a)(2)(2012), Oxy Midstream Strategic Development, LLC and Magellan Midstream Partners, L.P., on behalf of BridgeTex Pipeline Company, LLC, filed a petition seeking a declaratory order approving the
Any person desiring to intervene or to protest in this 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. 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 Petitioner.
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
On July 17, 2012, Kaweah River Power Authority, California, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Terminus Project Incremental Generation Project to be located on the Kaweah River/Lake Kaweah near the town of Lemon Cove, Tulare County, Nevada. The project would affect federal lands and facilities administered by the U.S. Army Corps of Engineers (Corps). 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 utilize the existing facilities under the Kaweah River Power Authority's licensed Terminus Power Project No. 3947 that include: (1) The 2,375-foot-long, 250-foot-high, earthfill, Corps, Terminus dam; (2) a 1,675-foot-long penstock; (3) a powerhouse containing one generating unit with a rated capacity of 20.09 megawatts (MW); (4) a 25-foot-long tailrace; (5) and a 2-mile-long, 66-kilovolt transmission line interconnecting the Terminus Project to an existing Southern California Edison Company transmission line.
The proposed project would consist of the three additional units: Unit 2, Unit 3 and Unit 4. The proposed Unit 2 would include: (1) A 6-MW Francis turbine; (2) a 470-foot-long, 6-foot-diameter steel penstock connecting to the existing Unit 1 penstock; and (3) a 50-foot-long by 40-foot-wide by 49-foot-tall concrete powerhouse. The proposed Unit 3 would include: (1) A 2-MW Francis turbine; and (2) a 3.5-foot-diameter low-flow conduit branching off from the existing Unit 1 penstock. The proposed Unit 4 would include a 1-MW Francis turbine and would be connected by an extension to the proposed 3.5-foot-diameter low-flow conduit. Unit 3 and Unit 4 would share a concrete powerhouse. The annual energy output of all three proposed units (9 MW) would be approximately 9.2 gigawatthours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission's staff may attend the following meeting related to Seams Issues between MISO and PJM:
The above-referenced meeting will be held at:
The Philadelphia Airport Marriot, Philadelphia, PA.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The discussions at the meeting described above may address matters at issue in the following proceeding:
Docket No. RM10-23-000/001,
For more information, contact Jesse Hensley, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-6228 or
As announced in the Notices issued on July 5, 2012
The Mid-Atlantic region technical conference will be held at the following venue: Commission Headquarters, 888 First Street NE., Washington, DC 20426.
If you have not already done so, those who plan to attend the Mid-Atlantic region technical conference are strongly encouraged to complete the registration form located at:
The Mid-Atlantic region technical conference will not be transcribed. However, there will be a free webcast of the conference. The webcast will allow persons to listen to the Mid-Atlantic region technical conference, but not participate. Anyone with Internet access who desires to listen to the Mid-Atlantic region conference can do so by navigating to
Information on this and the other regional technical conferences will also be posted on the Web site
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this and the other regional technical conferences, please contact:
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region 2, of a proposed de minimis administrative settlement agreement and order on consent pursuant to Section 122(g)(4) of CERCLA, between EPA and American Axle & Manufacturing, Inc., Amersham Health, Inc., Bishop & Associates, City of San Diego, County Board of Arlington, Virginia, Energy Solutions Services, Inc., Scientific Ecology Group, Inc., Genesys Regional Medical Center, Ingot Metal Company, Ltd., Purina Mills, LLC, Shred-A-Can Recyclers, Ltd., Triumvirate Environmental, Inc., and Waste Management of Michigan, Inc. (hereafter “Settling Parties”) pertaining to the Mercury Refining Superfund Site (“Site”) located in the Towns of Guilderland and Colonie, Albany County, New York. The settlement requires specified individual payments by each Settling Party to the EPA Hazardous Substance Superfund Mercury Refining Superfund Site Special Account, which combined total $79,028.49. Each Settling Party's individual settlement amount is considered to be that party's fair share of cleanup costs incurred and anticipated to be incurred in the future, plus a “premium” that accounts for, among other things, uncertainties associated with the costs of that future work at the Site. The settlement includes a covenant not to sue pursuant to Sections 106 and 107 of CERCLA, relating to the Site, subject to limited reservations, and protection from contribution actions or claims as provided by Sections 113(f)(2) and 122(g)(5) of CERCLA. For thirty (30) days following the date of publication of this notice, EPA will receive written comments relating to the settlement. EPA will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper, or inadequate.
EPA's response to any comments received will be available for public inspection at EPA Region II, 290 Broadway, New York, New York 10007-1866.
Comments must be submitted on or before September 27, 2012.
The proposed settlement is available for public inspection at EPA Region 2 offices at 290 Broadway, New York, New York 10007-1866. Comments should be sent to the individual identified below and should reference the Mercury Refining Superfund Site, Index No. CERCLA-02-2011-2012. To request a copy of the proposed settlement agreement, please contact the individual identified below.
Sharon E. Kivowitz, Assistant Regional Counsel, New York/Caribbean Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, 17th Floor, 290 Broadway, New York, New York 10007-1866. Telephone: 212-637-3183. Email:
Environmental Protection Agency (EPA).
Notice of availability; Clean Air Act Section 105 grantee performance evaluation reports.
EPA's grant regulations require the Agency to evaluate the performance of agencies which receive grants. EPA's regulations for regional consistency require that the Agency notify the public of the availability of the reports of such evaluations. EPA performed end-of-year evaluations of eight state air pollution control programs (Alabama Department of Environmental Management; Florida Department of Environmental Protection; Georgia Department of Natural Resources; Commonwealth of Kentucky Energy and Environment Cabinet; Mississippi Department of Environmental Quality; North Carolina Department of Environment and Natural Resources; South Carolina Department of Health and Environmental Control; and Tennessee Department of Environment and Conservation) and 17 local programs (City of Huntsville Division of Natural Resources, AL; Jefferson County Department of Health, AL; Broward County Environmental Protection and Growth Management Department, FL; City of Jacksonville Environmental Quality Division, FL; Hillsborough County Environmental Protection Commission, FL; Miami-Dade County Air Quality Management Division, FL; Orange County Environmental Protection Division, FL; Palm Beach County Health Department, FL; Pinellas County Parks and Conservation Resources, FL; Louisville Metro Air Pollution Control District, KY; Forsyth County Environmental Affairs Department, NC; Mecklenburg County Land Use and Environmental Services Agency, NC; Western North Carolina Regional Air Quality Agency, NC; Chattanooga-Hamilton County Air Pollution Control Bureau, TN; Shelby County Health Department, TN; Knox County Department of Air Quality Management, TN; and Metropolitan Government of Nashville and Davidson County Public Health Department, TN). The 25 evaluations were conducted to assess the agencies' Fiscal Year 2011 performance under the grants awarded by EPA under authority of section 105 of the Clean Air Act. EPA Region 4 has prepared reports for each agency identified above and these reports are now available for public inspection.
The reports may be examined at the EPA's Region 4 office, 61 Forsyth Street SW., Atlanta, Georgia 30303, in the Air, Pesticides and Toxics Management Division. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.
Marie Persinger (404) 562-9048 for information concerning the state and local agencies of Alabama and Kentucky; Artra Cooper (404) 562-9047 for the state and local agencies of Florida; Mary Echols (404) 562-9053 for the state agency of Georgia; Shantel Shelmon (404) 562-9817 for the state and local agencies of North Carolina; Angela Isom (404) 562-9092 for the state agencies of Mississippi and South Carolina; and Gwendolyn Graf (404) 562-9289 for the state and local agencies of Tennessee. They may be contacted at the Region 4 address mentioned in the previous section of this notice.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a joint public teleconference of the Chartered SAB and Board of Scientific Counselors (BOSC) to discuss a draft report providing advice on implementation of Office of Research and Development's (ORD's) strategic directions for research.
The public teleconference will be held on September 19, 2012 from 12 p.m. to 3 p.m. (Eastern Daylight Time).
The public teleconference will be conducted by telephone only.
Any member of the public wishing to obtain general information regarding the quality review teleconference should contact Dr. Angela Nugent, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), 1200 Pennsylvania Avenue NW., Washington, DC 20460; via telephone/voice mail (202) 564-2218; fax (202) 565-2098 or via email at
The SAB was established pursuant to the Environmental Research, Development, and Demonstration Authorization Act (ERDAA), codified at 42 U.S.C. 4365, to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The BOSC was established by the EPA to provide advice, information, and recommendations regarding the ORD research program. The SAB and BOSC are Federal Advisory Committees chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Pursuant to FACA and EPA policy, notice is hereby given that the SAB and BOSC will hold a joint public teleconference to discuss a draft report providing advice on implementation of ORD's new strategic directions for research. The SAB and BOSC will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
ORD requested that the SAB work jointly with the BOSC to provide advice on implementation of ORD's strategic research action plans; efforts to strengthen program integration; and efforts to strengthen and measure innovation. The SAB and BOSC held a joint public meeting on July 10-11, 2012, to discuss implementation of ORD's six major research programs (77 FR 36273-36274). The SAB and BOSC will hold a public teleconference on September19, 2012, to discuss their draft joint advisory report. Additional information about SAB and BOSC advice on implementing ORD strategic research directions can be found on the SAB Web site at
Environmental Protection Agency.
Notice of a public meeting.
The U.S. Environmental Protection Agency (EPA or agency) is announcing a meeting of the National Drinking Water Advisory Council (NDWAC or Council), established under the Safe Drinking Water Act (SDWA). This meeting was originally scheduled (and announced in a
The meeting on October 4, 2012, will be held from 8:30 a.m. to 5:00 p.m., Central Time, and on October 5, 2012, from 8:30 a.m. to 3:00 p.m., Central Time.
The meeting will be held at EPA's Chicago Regional Office (EPA Region 5) at the Ralph Metcalfe Federal Building, 77 West Jackson Blvd., Chicago, IL 60604-3590 and will be open to the public. All attendees must go through a metal detector, sign in with the security desk, and show government issued photo identification to enter government buildings.
Members of the public who would like to register and receive pertinent information, present an oral statement or submit a written statement for the October 4 and 5 meeting should contact Roy Simon, by September 15; by email at
This meeting was originally scheduled (and announced in a
Environmental Protection Agency (EPA).
Notice.
The EPA Science Advisory Board (SAB) Staff Office announces a public teleconference of the chartered SAB to conduct quality reviews of: (1) An SAB draft review report on EPA's Toxicological Review of Libby Amphibole Asbestos and (2) an SAB draft report regarding EPA's Scientific and Technological Achievement Awards for FY2012.
The public teleconference will be held on September 25, 2012 from 2:00 p.m. to 5:00 p.m.
The public teleconference will be conducted by telephone only.
Any member of the public wishing to obtain general information regarding the quality review teleconference should contact Dr. Angela Nugent, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), 1200 Pennsylvania Avenue NW., Washington, DC 20460; via telephone/voice mail (202) 564-2218; fax (202) 565-2098 or via email at
Pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2, notice is hereby given that the EPA Science Advisory Board will hold a public teleconference to conduct quality reviews of two SAB draft reports. The SAB was established pursuant to 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee under FACA. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
Quality review is a key function of the chartered SAB. Draft reports prepared by SAB committees, panels, or work groups must be reviewed and approved by the chartered SAB before transmittal to the EPA Administrator. The chartered SAB makes a determination in a public meeting consistent with FACA about the quality of all draft reports and determines whether the report is ready to be transmitted to the EPA Administrator.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces a public teleconference of the SAB Exposure and Human Health Committee to discuss its draft report concerning EPA's application of computational toxicology (CompTox) data in risk assessment.
The public teleconferences will be held on Monday September 24, 2012 from 2 p.m. to 5 p.m. (Eastern Daylight Time).
The teleconference will be conducted by telephone only.
Any member of the public who wants further information concerning the meeting may contact Dr. Sue Shallal, Designated Federal Officer (DFO), EPA Science Advisory Board (1400R), U.S. Environmental Protection Agency, 1300 Pennsylvania Avenue NW., Washington, DC 20460; via telephone/voice mail (202) 564-2057; fax (202) 565-2098; or email at
Pursuant to the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App., notice is hereby given that the SAB Exposure and Human Health Committee (EHHC) will hold a public teleconference to discuss its draft response to the charge questions regarding the EPA computational toxicology program. The SAB was established pursuant to 42 U.S.C. 4365 to provide independent scientific and technical advice to the Administrator on the technical basis for Agency positions and regulations. The SAB is a Federal Advisory Committee chartered under FACA. The SAB will comply with the provisions of FACA and all appropriate SAB Staff Office procedural policies.
The SAB EHHC along with liaison members of the FIFRA Scientific Advisory Panel (SAP) held a public meeting on May 30-31, 2012 to receive a briefing on EPA's CompTox program and plans for advancing the application of CompTox data into the development of EPA risk assessments. The purpose of this public teleconference is for the Committee to discuss its draft report on this advisory activity. Additional background on this SAB advisory activity is provided in the
Export-Import Bank of the United States.
Notice of 25 day comment period regarding an application for final commitment for a long-term loan or financial guarantee in excess of $100 million.
Comments received within the comment period specified below will be presented to the Ex-Im Bank Board of Directors prior to final action on this Transaction.
Brief description of the purpose of the transaction:
To support the export of commercial aircraft to Dubai.
Brief non-proprietary description of the anticipated use of the items being exported:
Aircraft to be exported to Dubai for use in commercial passenger air service between the UAE and other countries.
To the extent that Ex-Im Bank is reasonably aware, the item(s) being
Comments must be received on or before September 24, 2012 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through
Export-Import Bank of the United States.
Notice of 25-day comment period regarding an application for final commitment for a long-term loan or financial guarantee in excess of $100 million.
This Notice is to inform the public, in accordance with Section 3(c)(10) of the Charter of the Export-Import Bank of the United States (“Ex-Im Bank”), that Ex-Im Bank has received an application for final commitment for a long-term loan or financial guarantee in excess of $100 million (as calculated in accordance with Section 3(c)(10) of the Charter).
Comments received within the comment period specified below will be presented to the Ex-Im Bank Board of Directors prior to final action on this Transaction.
To support the export of commercial aircraft to Ireland.
Brief non-proprietary description of the anticipated use of the items being exported:
To be sub-leased to SpiceJet for short- and medium-haul passenger air service in India and between India and regional destinations.
To the extent that Ex-Im Bank is reasonably aware, the item(s) being exported are not expected to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Comments must be received on or before September 24, 2012 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through
Export-Import Bank of the United States.
Notice of 25 day comment period regarding an application for final commitment for a long-term loan or financial guarantee in excess of $100 million.
Brief description of the purpose of the transaction:
To support the export of commercial aircraft to Ireland.
Brief non-proprietary description of the anticipated use of the items being exported:
To be sub-leased to foreign airlines (acceptable to Ex-Im Bank), to be determined at a later date, for short- and medium-haul passenger air service in East Asia, South Asia, and/or Europe.
To the extent that Ex-Im Bank is reasonably aware, the item(s) being exported are not expected to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Boeing 737 aircraft.
Comments must be received on or before September 24, 2012 to be assured of consideration before final consideration of the transaction by the Board of Directors of Ex-Im Bank.
Comments may be submitted through
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 29, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via Internet at
Benish Shah, Office of Managing Director, (202) 418-7866.
(a) A RF device may be advertised and displayed at a trade show or exhibition prior to a demonstration of compliance with the applicable technical standards and compliance with the applicable equipment authorization procedure provided the advertising and display is accompanied by a conspicuous notice specified in
(b) An offer for sale solely to business, commercial, industrial, scientific, or medical users of an RF device in the conceptual, developmental, design or pre-production stage prior to demonstration of compliance with the equipment authorization regulations may be permitted provided that the prospective buyer is advised in writing at the time of the offer for sale that the equipment is subject to FCC rules and that the equipment will comply with the appropriate rules before delivery to the buyer or centers of distribution.
(c) There are no FCC requirements for how this notice of compliance is to be phrased.
The information to be disclosed about marketing of the RF device is intended:
(a) To ensure the compliance of the proposed equipment with Commission rules; and
(b) To assist industry efforts to introduce new products to the marketplace more promptly.
The information disclosure applies to a variety of RF devices that:
(a) Is pending equipment authorization or verification of compliance;
(b) May be manufactured in the future; and
(c) Operates under varying technical standards.
The information disclosed is essential to ensuring that interference to radio communications is controlled.
Federal Communications Commission.
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB control number.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before October 29, 2012. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Judith B. Herman, Federal Communications Commission, via the Internet at
Judith B. Herman, Office of Managing Director, (202) 418-0214.
Under the Commission's E911 rules, a wireless carrier must provide E911 service to a particular Public Safety Answering Point (PSAP) within six months only if that PSAP makes a request for the service and is capable of receiving and utilizing the information provided. In the City of Richardson, TX Order, the Commission's actions were intended to facilitate the E911 implementation process by encouraging parties to communicate with each other early in the implementation process, and to maintain a constructive, on-going dialog throughout the implementation process.
The Order contains the following information collection requirements for which the Commission seeks continued OMB approval:
(a) The Commission established a procedure whereby wireless carriers that have completed all necessary steps toward E911 implementation that are not dependent on PSAP readiness may have their compliance obligation temporarily tolled, if the PSAP is not ready to receive the information at the end of the six-month period, and the carrier files a certification to that effect with the Commission.
(b) As part of the certification and notification process (third party disclosure requirements), a carrier must notify the PSAP of its intent to file a certification with the Commission that the PSAP is not ready to receive and use the information. The PSAP is permitted to send a response to the carrier's notification to affirm that it is not ready to receive E911 information or to challenge the carrier's characterization of its state of readiness. Carriers are required to include any response they receive from the PSAP in their certification filing to the Commission.
(c) The Commission clarified that noting in its rules prevented wireless carriers and PSAPs from mutually agreeing to an E911 deployment schedule at variance with the schedule contained in the Commission's rules. Carriers and PSAPs may choose to participate in the certification and private negotiation process. The Commission does not require participation.
The Commission will use the certification filings from wireless carriers to determine each carrier's compliance with its E911 obligations. The Commission will review carrier certifications to ensure that carriers have sufficiently explained the basis for their conclusion that a particular PSAP will not be ready and have identified all of the specific steps for the PSAP to provide the requested service. The Commission retains the discretion to investigate a carrier's certification and take enforcement action if appropriate.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid control number. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written comments should be submitted on or before September 27, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via fax 202-395-5167, or via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
On March 3, 2011, the Commission adopted a Second Report and Order (“Rural Second R&O”), First Order on Reconsideration, and Second Further Notice of Proposed Rule Making in MB Docket No. 09-52, FCC 11-28, 26 FCC Rcd 2556 (2011). On December 28, 2011, the Commission adopted a Third Report and Order in MB Docket No. 09-52, FCC 11-190, 26 FCC Rcd 17642 (2011) (“Rural Third R&O”). In the Rural Third R&O the Commission further refined the use of the Tribal Priority in the commercial FM radio context, specifically adopting a “Threshold Qualifications” approach to commercial FM application processing.
Furthermore, under the Commission's Tribal Priority procedures, entities obtaining:
(a) An AM authorization for which the applicant claimed and received a dispositive Section 307(b) priority because it qualified for the Tribal Priority; or
(b) An FM commercial non-reserved band station awarded:
(1) To the applicant as a singleton Threshold Qualifications Window applicant,
(2) To the applicant after a settlement among Threshold Qualifications Window applicants, or
(3) To the applicant after an auction among a closed group of bidders composed only of threshold qualified Tribal applicants; or
(c) A reserved-band NCE FM station for which the applicant claimed and received the Tribal Priority in a fair distribution analysis as set forth in 47 CFR 73.7002(b)(1), may not assign or transfer the authorization during the period beginning with issuance of the construction permit, until the station has completed four years of on-air operations, unless the assignee or
Consistent with actions taken by the Commission in the Rural Third R&O, the following changes are made to Forms 314 and 315: Section I of each form includes a question asking applicants to indicate whether any of the authorizations involved in the subject transaction were obtained: after award of a dispositive Section 307(b) preference using the Tribal Priority; through Threshold Qualification procedures; or through the Tribal Priority as applied before the NCE fair distribution analysis. A subsequent question then asks whether both the assignor/transferor and assignee/transferee qualify for the Tribal Priority in all respects. Applicants not meeting the Tribal Priority qualifications and proposing an assignment or transfer during the Holding Period must provide an exhibit demonstrating that the transaction is consistent with the Tribal Priority policies or that a waiver is warranted. The instructions for Section I of Forms 314 and 315 have been revised to assist applicants with completing the questions.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before October 29, 2012. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to the Federal Communications Commission via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Deposit Insurance Corporation (FDIC).
Notice of open meeting.
In accordance with the Federal Advisory Committee Act, notice is hereby given of a meeting of the FDIC Advisory Committee on Economic Inclusion, which will be held in Washington, DC The Advisory Committee will provide advice and recommendations on initiatives to expand access to banking services by underserved populations.
Wednesday, September 12, 2012, from 8:45 a.m. to 3:30 p.m.
The meeting will be held in the FDIC Board Room on the sixth floor of the FDIC Building located at 550 17th Street NW., Washington, DC
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Committee Management Officer of the FDIC, at (202) 898-7043.
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), pursuant to 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR part 1320 Appendix A.1. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 29, 2012.
You may submit comments, identified by FR 4022 by any of the following methods:
•
•
•
•
•
All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed —Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503 or by fax to 202-395-6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer—Cynthia Ayouch—Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829). Telecommunications Device for the Deaf (TDD) users may contact (202-263-4869), Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, 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 information 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.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 11, 2012.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
2.
B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
C. Federal Reserve Bank of St. Louis (Glenda Wilson, Community Affairs Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
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 will also 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.
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 September 21, 2012.
A. Federal Reserve Bank of St. Louis (Glenda Wilson, Community Affairs Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
B. Federal Reserve Bank of San Francisco (Kenneth Binning, Vice President, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
In connection with this application, Applicant has also applied to acquire Las Vegas Sunset Properties, Las Vegas, Nevada, and thereby engage in extending credit and servicing loans, pursuant to section 225.28(b)(1).
This notice corrects a notice (FR Doc. 2012-200028) published on pages 48983 and 48984 of the issue for Wednesday, August 15, 2012.
Under the Federal Reserve Bank of Minneapolis heading, the entry for Frandsen Financial Corporation, Arden Hills, Minnesota, is revised to read as follows:
A. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1.
Comments on this application must be received by September 7, 2012.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 21, 2012.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, email your request, including your address, phone number and the document identifier OS-0955-0002, to
The Federal Health IT Strategic Plan identifies the Fair Information Practice Principles (FIPPS) an important guidepost in the development of privacy policies and programs. Openness and Transparency is a key principle of fair information practices. The NPP is an important component of fulfilling this principle. If patients cannot adequately understand the notice because of its length or complexity, then the use and disclosure of their health information is not open and transparent.
In addition, each participant will have been recruited through a 15-minute screening interview. The participants will be recruited according to U.S. census statistics for race/ethnicity, age, marital status, gender, and income.
Office of the Secretary, HHS.
Notice.
Notice is hereby given that the Office of Research Integrity (ORI) has taken final action in the following case:
ORI found that Respondent engaged in research misconduct involving two (2) published papers:
As a result of Joslin's investigation, both
Specifically, ORI found that:
• Respondent falsely represented von Kossa-stained bone nodule images in two (2) published papers:
a. Figure 2B in the
b. Figure S2c in the
• Respondent falsely represented eight (8) flow cytometry contour plots as different experimental results by using identical plots but with different labels and different numerical percentages. Specifically, the following contour plots in the
Both the Respondent and HHS want to conclude this matter without further expenditure of time or other resources and have entered into a Voluntary Settlement Agreement to resolve this matter. Respondent neither admits nor denies ORI's finding of research misconduct. This settlement does not constitute an admission of liability on the part of the Respondent. Dr. Mayack has voluntarily agreed:
(1) If within three (3) years from the effective date of the Agreement, Respondent does receive or apply for U.S. Public Health Service (PHS) support, Respondent agrees to have her research supervised for a period of three (3) years beginning on the date of her employment in a research position in which she receives or applies for PHS support and to notify her employer(s)/institution(s) of the terms of this supervision; Respondent agrees that prior to the submission of an application for PHS support for a research project on which the Respondent's participation is proposed and prior to Respondent's participation in any capacity on PHS-supported research, Respondent shall ensure that a plan for supervision of Respondent's duties is submitted to ORI for approval; the supervision plan must be designed to ensure the scientific integrity of Respondent's research contribution; Respondent agrees that she shall not participate in any PHS-supported research until such a supervision plan is submitted to and approved by ORI; Respondent agrees to maintain responsibility for compliance with the agreed upon supervision plan;
(2) If within three (3) years from the effective date of the Agreement, Respondent does receive or apply for PHS support, Respondent agrees that any institution employing her shall submit, in conjunction with each application for PHS funds, or report, manuscript, or abstract involving PHS-supported research in which Respondent is involved, a certification to ORI that the data provided by Respondent are based on actual experiments or are otherwise legitimately derived and that the data, procedures, and methodology are accurately reported in the application, report, manuscript, or abstract; and
(3) To exclude herself voluntarily from serving in any advisory capacity to PHS including, but not limited to, service on any PHS advisory committee, board, and/or peer review committee, or as a consultant for a period of three (3) years, beginning on July 27, 2012.
Director, Division of Investigative Oversight, Office of Research Integrity, 1101 Wootton Parkway, Suite 750, Rockville, MD 20852, (240) 453-8800.
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of notice.
This document corrects a technical error in the notice [Document Identifier: CMS-10003] entitled “Notice of Denial of Medical Coverage (or Payment)” that was published in the July 6, 2012 (77 FR 40064)
William Parham, (410) 786-4669.
In the FR Doc. 2012-16514 of July 6, 2012 (77 FR 40064), we published a Paperwork Reduction Act notice requesting a 60-day public comment period for the document entitled “Notice of Denial of Medical Coverage (or Payment).”
In the July 6, 2012 notice, we listed the incorrect contact information. Therefore, we are correcting that error in this notice.
In FR Doc. 2012-16514 of July 6, 2012 (77 FR 40064), make the following correction:
On page 40068, first column, fourth full paragraph, on the fifteenth line in the paragraph beginning with “(For policy questions regarding, ” and ending with, “410-786-0273),” is corrected to read as follows.
“(For policy questions regarding this collection contact Kathryn McCann Smith at 410-786-7623.)”
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) has determined the regulatory review period for TORISEL and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of Patents and Trademarks, Department of Commerce, for the extension of a patent which claims that human drug product.
Submit electronic comments to
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6222, Silver Spring, MD 20993-0002, 301-796-3602.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants permission to market the drug product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of Patents and Trademarks may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA approved for marketing the human drug product TORISEL (temsirolimus). TORISEL is indicated for the treatment of advanced renal cell carcinoma. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for TORISEL (U.S. Patent No. 5,362,718) from Wyeth, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration and that FDA determine the product's regulatory review period. In a letter dated August 7, 2012, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of TORISEL represented the first permitted commercial marketing or use of the product.
FDA has determined that the applicable regulatory review period for TORISEL is 3,290 days. Of this time, 3,052 days occurred during the testing phase of the regulatory review period, while 238 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the U.S. Patent and Trademark Office applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,764 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Comments and petitions that have not been made publicly available on
Food and Drug Administration, HHS.
Notice of a Privacy Act system of records.
In accordance with the requirements of the Privacy Act of 1974 (the Privacy Act) and the Food and Drug Administration's (FDA's) regulations for the protection of privacy, FDA is publishing notice of a new Privacy Act system of records entitled “FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC” System No. 09-10-0020. Under the Department of Health and Human Services' (HHS' or the Department's) Public Health Service Policies on Research Misconduct, FDA has responsibilities for addressing research integrity and misconduct issues related to FDA supported activities. This system contains records related to the processing and reviewing of allegations of scientific research misconduct levied against an individual (the respondent) who is an agent of, or affiliated by contract or agreement with, FDA, or an FDA employee involved in intramural research. Research misconduct proceedings include allegation assessments, inquiries, investigations, oversight reviews by HHS' Office of Research Integrity (ORI), hearings, and administrative appeals.
Effective Date: The new system of records will be effective on August 28, 2012, with the exception of the routine uses and the requested exemptions. The routine uses will become effective on October 12, 2012. As detailed in the companion
You may submit comments, identified by Docket No. FDA-2011-N-0253, by any of the following methods:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier (for paper or CD-ROM submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Eileen Parish, Office of the Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4214, Silver Spring, MD 20993, 301-796-8522,
This system will collect and maintain personally identifiable information (PII) and other data collected during the research misconduct process. The collected information will include, but is not limited to: Name, address, telephone number, education, professional experience, employment address, and training of an individual(s) who is (are) the subject of allegations. In addition, the system will contain records of complaints received, including the identity of the complainant, and how complaints were received and resolved. Also included will be information of witnesses and members of research misconduct committees.
FDA's procedures for disclosures of information maintained in this system of records are set forth in 21 CFR part 21.
In accordance with the Privacy Act (5 U.S.C. 552a), FDA is providing notice of the “routine uses” of the records contained in the system of records. Disclosure of such records is permitted without the written consent of the individual to whom the record pertains, if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected (5 U.S.C. 552a(b)(3)). Any such compatible use of data is known as a “routine use.” The routine uses in this system meet the compatibility requirement of the Privacy Act.
The first two routine uses permit FDA to share information from this system with the individual or entity submitting an allegation; witnesses; pertinent Federal, State, and local agencies; and third parties that can provide information related to the allegation or proceeding.
In the event of a suspected or confirmed breach of security or confidentiality of the system, the third routine use allows disclosures to Federal Agencies as necessary in order to respond to the breach. Likewise, where a record indicates a violation of law, FDA may share information with the responsible enforcement authority under the fifth routine use, and may provide information to the Department of Homeland Security (DHS) in circumstances where system records are captured in an intrusion detection program and made accessible to DHS as described in routine use 15.
When health implications are evident based on information developed in the course of a proceeding, the fourth routine use permits disclosure to research subjects, institutional review boards, and collaborating institutions.
When FDA finds research misconduct has occurred, routine uses 6 through 10 describe disclosures FDA may make to FDA supported entities (routine use 6), to the respondent's supervisor or employer (routine use 7 and 8), to publications as needed to retract research results (routine use 9), and licensing authorities (routine use 10). Similarly, routine use 12 permits disclosure of information to the parties and related institutions when FDA does not find research misconduct.
Additional routine uses common to Federal records systems provide for disclosure to contractors and others who perform services for FDA related to this system (routine use 11), to the Department of Justice (DOJ) as related to the DOJ's representation of FDA or Agency employees (routine use 13), to courts when the records are relevant in legal actions involving the U.S. Government, FDA, or Agency employees (routine use 14), and, to the National Archives and Records Administration and General Services Administration as needed in the course of records management inspections (routine use 16).
As specified in section I.K of this document (see
Because this is a law enforcement investigatory system, HHS and FDA intend to amend their Privacy Act regulations (45 CFR 5b.11 and 21 CFR 21.61, respectively) to exempt records in this system related to ongoing investigations or that would reveal a confidential source from the notification, access, and amendments provisions of the Privacy Act. These exemptions are necessary to maintain the integrity of research misconduct proceedings and allow FDA to obtain essential information. The proposed exemptions would ensure that the records related to ongoing investigations will not be disclosed inappropriately and that the identities of confidential sources will be protected. FDA and HHS are publishing companion rulemaking documents regarding these exemptions elsewhere in this issue of the
The system number is: 09-10-0020.
The system name is: FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC.
The security classification for the system is: Unclassified.
System records are located in the Office of the Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, rm. 4214, Silver Spring, MD 20993. Some records may reside in the Agency component offices during the time that an allegation is under review.
This system includes records related to the processing and reviewing of allegations of research misconduct levied against an individual (the respondent) who is an agent of, or affiliated by contract or agreement with FDA, or an FDA employee involved in intramural research. The records contain personally identifiable information (PII) and non-PII about respondents, complainants, witnesses and other individuals affiliated with entities that are contacted by or provide information to FDA.
Privacy Act notification, access, and amendment rights (described in this document) relative to this system are available to individuals who are subjects of records in the system, that is, respondents. Although records in the system may contain PII related to other individuals, only respondents are considered subjects of records in this system.
“Respondents” is defined as “the person against whom an allegation of research misconduct is directed or who is the subject of a research misconduct proceeding.” The term “research misconduct” is defined in 42 CFR 93.103 to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” These and other definitions are set out in 42 CFR part 93.
This system notice applies to an allegation of research misconduct involving the following: (1) Applications or proposals for FDA support for biomedical or behavioral extramural or intramural research or research training, or activities related to that research or research training; (2) FDA supported biomedical or behavioral extramural or intramural research; (3) FDA supported extramural or intramural research training programs; (4) FDA supported extramural or intramural activities that are related to biomedical or behavioral research or research training; and (5) plagiarism of research records produced in the course of FDA supported research, research training, or activities related to that research or research training.
The records in the system include information that must be submitted to ORI by FDA under 42 CFR part 93 and information that FDA obtains while conducting research misconduct proceedings. This information may include, but is not limited to:
• PII about respondents such as name, date of birth, employment information, educational background, social security number, personal and professional phone numbers, mailing address, and email address;
• PII regarding complainants and witnesses such as name, and personal or work contact information;
• The nature and substance of allegations;
• Data regarding FDA funding related to the research and/or respondent, including grants numbers;
• The organization(s) and officials responsible for conducting the action that are part of the research misconduct proceeding;
• The documentation used in the inquiry and investigation, including relevant research data and materials, which may include relevant information on study subjects;
• Applications, proposals, and documentation related to review and award actions;
• Reports, abstracts, manuscripts, and publications by the respondent(s);
• Other relevant reports, abstracts, manuscripts, and publications;
• Correspondence and memoranda of telephone calls;
• Summaries of interviews and transcripts or recordings of interviews;
• Statistical, scientific, and forensic analyses;
• Interim and final FDA reports; and
• Records of Agency findings, administrative actions, and appeal proceedings, if any.
The system also contains general administrative and oversight records regarding ORI actions. This includes information related to the following: (1) ORI reviews of the research misconduct proceedings, ORI findings of research misconduct, and ORI proposals for administrative action or for settlement of the case; (2) a respondent's opportunity to contest ORI findings of research misconduct and proposed HHS administrative actions; (3) final HHS findings of research misconduct and final decisions regarding administrative actions and their implementation; and (4) FDA and ORI coordination with other Federal, State, and local offices or agencies, including the DOJ.
The authorities for maintaining this system are: 21 U.S.C. 371, 375, 393(d)(2), 394, 397, and 399a; 42 U.S.C. 216(b), 241, 289b; 5 U.S.C. 301; 44 U.S.C. 3101; and 42 CFR part 93.
The purposes of this system are to do the following:
1. Enable FDA, ORI, HHS, and the Federal Government to protect the health and safety of the public, to promote the integrity of FDA supported research, and to conserve public funds.
2. Enable FDA to implement its authority relating to research misconduct proceedings as set forth in 42 CFR part 93 and to document FDA activities in implementing that authority.
3. Ensure that research misconduct proceedings, including FDA's implementation of the Agency's and other HHS administrative actions, are carried out in accordance with FDA policy, 42 CFR part 93, and other applicable Federal statutes and regulations.
4. Enable FDA to inform Agency officials and other HHS officials who have a need for the records in the performance of their duties of the status and results of research misconduct proceedings.
5. Enable FDA to notify, consult with, and provide assistance to ORI, and other Federal, State, or local agencies to permit them to take action to protect the health and safety of the public, to promote the integrity of FDA supported research, to conserve public funds, or to pursue potential violations of civil and criminal statutes.
The Privacy Act lists the conditions for disclosure under 5 U.S.C. 552a(b). Among the permitted disclosures is disclosure “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties” (5 U.S.C. 552a(b)(1)). For this system of records, this condition would include disclosure to the appropriate FDA, ORI, and other HHS officers and employees.
Permitted disclosures also include routine uses that are listed in the notice of the system of records (5 U.S.C. 552a(b)(3)). The Privacy Act defines “routine use” as “with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.” See also FDA's Privacy Act regulations, defining “routine use” as “use outside the Department of Health and Human Services that is compatible with the purpose for which the records were collected and described in the [System of Records] notice)” (21 CFR 21.20(b)(5)).
Records in this system that contain information about record subjects (respondents) and nonsubjects (witnesses, complainants, and other individuals affiliated with entities that are contacted by or provide information to FDA) may be disclosed to recipients outside HHS in accordance with the following routine uses:
1. Disclosure may be made to any individual or entity able to obtain information or provide information or assistance in a research misconduct proceeding or related proceeding. Recipients of disclosures under this routine use may include experts asked to perform statistical, forensic, or other analyses; the relevant FDA supported institution(s); institutions with which the respondent(s) was previously affiliated; Federal, State and local agencies; the respondent(s); the complainant(s); witnesses; and organizations or individuals acting on behalf of those agencies, institutions, and individuals; provided, however, that in each case FDA determines whether limited disclosures or confidentiality agreements are needed to protect the privacy of respondent(s), complainant(s), witnesses, research subjects, or others who may be identified in the records to be disclosed.
2. Disclosure may be made to other Federal, State, or local agencies and offices, if FDA has reason to believe that a research misconduct proceeding may involve that agency or office.
3. Disclosure may be made to appropriate Federal Agencies and Department contractors that have a need to know the information for the purpose of assisting the Department's efforts to respond to a suspected or confirmed breach of the security or confidentiality of information maintained in this system of records, and the information disclosed is relevant and necessary for that assistance.
4. Disclosure may be made to Institutional Review Boards, collaborating institutions, and individual research subjects, regarding information obtained or developed through a research misconduct proceeding that, in FDA's judgment, may have implications for individuals' health or for their participation in a research study.
5. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, disclosure may be made to the appropriate agency, whether Federal, foreign, State, local, or tribal, or other public authority responsible for enforcing, investigating, or prosecuting such violation, if the information disclosed is relevant to the responsibilities of the agency or public authority.
6. After FDA makes a finding of research misconduct and has informed ORI of this finding, disclosure may be made to responsible officials of FDA supported institutions or organizations, when in connection with a research misconduct proceeding concerning a respondent previously or currently employed by, or affiliated with the institution or organization, or when FDA, ORI, or HHS makes a finding or takes an action potentially affecting the agency or organization or its FDA support for research, research training, or related activities.
7. After FDA makes a finding of research misconduct and has informed ORI of this finding, disclosure may be made to the respondent's supervisor because research will be a significant part of many employee jobs, and performance is an important element of information to help the supervisor determine employee assignments as well as the level of supervision needed. If an individual moves to another job or contract, FDA may notify the other entity that we have relevant information with regard to that individual.
8. After FDA makes a finding of research misconduct and has informed ORI of this finding, disclosure may be made to a Federal Agency in connection with the hiring or retention of the respondent, the issuance of a security clearance, the reporting of an investigation of an employee, or the issuance of a license or other benefit by the Agency, to the extent that the record is relevant to the Agency's decision on the matter.
9. After FDA makes a finding of research misconduct and has informed ORI of this finding, disclosure may be made to professional journals, other publications, news media, and the public concerning research misconduct findings and the need to correct or retract research results or reports that have been affected by research misconduct, unless it is determined that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy. No information will be released that would reveal a confidential source.
10. After FDA makes a finding of research misconduct and has informed ORI of this finding, disclosure may be made to a State licensing board, certifying body, or other similar entity conducting a review of the respondent to aid the entity in meeting its responsibility to protect the health of the population in its jurisdiction or the integrity of the profession.
11. Disclosure may be made to contractors and other individuals or entities who perform services for the Agency related to this system of records and who have access to the records in order to perform such services, including individuals appointed to serve on FDA research misconduct inquiry committees or investigation committees if such individuals need access to the records to perform their assigned task. Provided, however, in each case FDA determines whether limited disclosures or confidentiality agreements are needed to protect the privacy of respondent(s), complainants(s), witnesses, research subjects, or others who may be identified in the records to be disclosed; and FDA determines that the disclosure is for a purpose compatible with the purpose for which the Agency collected the records.
12. When FDA closes a case without a settlement or finding of research misconduct, disclosure may be made to the respondent, relevant institution, and complainant(s); provided, however, that in each case FDA determines whether limited disclosures or confidentiality agreements are needed to protect the privacy of respondent(s), complainant(s), witnesses, research subjects, or others who may be identified in the records to be disclosed.
13. Disclosure may be made to the DOJ when: (1) The Agency or any component thereof; or (2) any employee of the Agency in his or her official capacity; or (3) any employee of the Agency in his or her individual capacity where the DOJ has agreed to represent the employee; or (4) the U.S. Government is a party to litigation or has an interest in such litigation, and by careful review, the Agency determines that the records are both relevant and necessary to the litigation and the use of such records by the DOJ is therefore deemed by the Agency to be for a purpose that is compatible with the
14. Disclosure may be made to a court or other tribunal when: (1) The Agency or any component thereof; or (2) any employee of the Agency in his or her official capacity; or (3) any employee of the Agency in his or her individual capacity where the DOJ has agreed to represent the employee; or (4) the U.S. Government is a party to the proceeding or has an interest in such proceeding, and by careful review, the Agency determines that the records are both relevant and necessary to the proceeding and the use of such records is therefore deemed by the Agency to be for a purpose that is compatible with the purpose for which the Agency collected the records.
15.
16. Disclosure may be made to the National Archives and Records Administration and/or the General Services Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Records may be maintained in hard copy files and on computer disks, hard drive, and file servers, and other types of data storage devices.
Records may be retrieved by manual or computer search of the case-tracking system using the name of the respondent(s).
Access to individual offices is controlled by simplex locks. Records are kept in locked file cabinets in a room that is locked during non-working hours. Access to this room is restricted to specific personnel. Access to computer files is strictly limited through passwords and user-invisible encryption. Special measures commensurate with the sensitivity of the record are taken to prevent unauthorized copying or disclosure of the records.
The records are maintained for 7 years in accordance with 42 CFR part 93, FDA's Records Control Schedule, and with the applicable General Records Schedule and disposition schedule approved by the National Archives and Records Administration.
FDA Research Integrity Officer, Office of the Chief Scientist, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4214, Silver Spring, MD 20993.
In accordance with 21 CFR part 21, subpart D, an individual may find out whether a record exists about him or her by submitting a written request, with notarized signature if request is made by mail, or with identification if request is made in person, directed to: FDA Privacy Act Coordinator, Division of Freedom of Information (ELEM-1029), Food and Drug Administration, 12420 Parklawn Dr., Element Building, Rockville, MD 20857. HHS/FDA is exempting all records related to research misconduct proceedings from this provision (see section I.S of this document
Procedures are the same as those in section I.O of this document (
In accordance with 21 CFR 21.50, contact the Privacy Act Coordinator, Food and Drug Administration (see
Information in this system is obtained from many sources, including the following: (1) Directly from the respondent or complainant or his/her representative; (2) derived from materials supplied by the respondent or complainant or his/her representative; (3) from information supplied by the institutions, witnesses, scientific publications, and other nongovernmental sources; (4) from observation and analysis made by FDA and ORI staff and scientific experts; (5) from departmental and other Federal, State, and local government records; (6) from hearings and other administrative proceedings; and (7) from any other relevant source.
FDA records related to research misconduct proceedings will be exempt from the Privacy Act requirements pertaining to providing an accounting of disclosures, access and amendment, notification, and Agency procedures and rules under sections 552a(k)(2) and (k)(5) of the Privacy Act.
Elsewhere in this issue of the
The notice of proposed rulemaking and direct final rule provide additional detail regarding the bases for these exemptions.
FDA invites comments on all parts of the systems notice. Interested persons may submit to the Division of Dockets Management (see
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
The ACCV will meet on Thursday, September 06 from 1:00 p.m. to 5:15 p.m. (EDT). The public can join the meeting via audio conference call by dialing 1-800-369-3104 on September 06, and providing the following information:
Anyone requiring information regarding the ACCV should contact Annie Herzog, DVIC, HSB, HRSA, Room 11C-26, 5600 Fishers Lane, Rockville, MD 20857; telephone (301) 443-6593, or email:
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 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 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.
National Institutes of Health (NIH), Department of Health and Human Services (DHHS).
Notification of a proposed exempt new system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended (Privacy Act), the National Institutes of Health (NIH) is proposing to establish an exempt new system of records, 09-25-0223, “NIH Records Related to Research Misconduct Proceedings, HHS/NIH.” The new system will contain records pertaining to individual respondents who are the subject of research misconduct allegations or proceedings governed by the Public Health Service (PHS) Policies on Research Misconduct (“PHS Policies on Research Misconduct”), 42 CFR Part 93 (“Part 93”). Because this is a law enforcement investigatory system, NIH has published a Notice of Proposed Rulemaking to exempt the system from certain requirements of the Privacy Act; specifically, the provisions pertaining to providing an accounting of disclosures, access and amendment, notification, and agency procedures and rules.
The new system of records will be effective on the date of publication of this notice, with the exception of the routine uses and the requested exemptions. The routine uses will become effective on October 12, 2012. As detailed in the related rulemaking notices published elsewhere in the
You may submit comments, identified by the Privacy Act System of Records Number (Ex. 09-25-0223), by any of the following methods:
• Federal eRulemaking Portal:
• Email:
• Phone: (301) 402-6201 (not a toll-free number).
• Fax: (301) 402-0169.
• Mail: NIH Privacy Act Officer, Office of Management Assessment, National Institutes of Health, 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, Maryland 20892.
• Hand Delivery/Courier: 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, Maryland 20892.
Comments received will be available for inspection and copying at this same address from 9:00 a.m. to 3:00 p.m., Monday through Friday, Federal holidays excepted.
NIH Privacy Act Officer, Office of Management Assessment (OMA), Office of the Director (OD), National Institutes of Health (NIH), 6011 Executive Boulevard, Suite 601, MSC 7669, Rockville, Maryland 20892, or telephone (301) 402-6201 (not a toll-free number).
NIH is establishing the “NIH Records Related to Research Misconduct Proceedings” system. The new system will be used by NIH to ensure that research misconduct proceedings are carried out in accordance with the NIH Intramural Research Program Policies and Procedures for Research Misconduct Proceedings (“NIH Policy”), 42 CFR Part 93, and other applicable Federal statutes and regulations; enable NIH to inform Institute/Center (IC), NIH, Office of Research Integrity (ORI), Public Health Service (PHS), and Department of Health and Human Services (DHHS) agency officials who have a need for the records in the performance of their duties, of the status and results of research misconduct proceedings; and enable NIH to notify, consult with, and provide assistance to other Federal, State, local, or Tribal government agencies to permit them to take action to protect the health and safety of the public, to promote the integrity of NIH- and PHS-supported research, to
09-25-0223
NIH Records Related to Research Misconduct Proceedings, HHS/NIH
Unclassified
This system of records will be located in National Institutes of Health (NIH) facilities and/or in the facilities of contractors and/or other affiliates working on behalf of NIH. Specific location:
Office of Intramural Research (OIR), National Institutes of Health (NIH), 9000 Rockville Pike, Bethesda, Maryland 20892.
The system will contain records about individuals who are the subject of research misconduct allegations or proceedings, referred to as “respondents.” The Public Health Service (PHS) Policies on Research Misconduct (“PHS Policies on Research Misconduct”), 42 CFR Part 93 (“Part 93”), define the term “respondent” to mean “the person against whom an allegation of research misconduct is directed or who is the subject of a research misconduct proceeding.” 42 CFR 93.225. This definition has also been incorporated into the NIH Intramural Research Program Policies & Procedures for Research Misconduct Proceedings (“NIH Policy”). Other individuals who may be involved in research misconduct allegations or proceedings (e.g., complainants, witnesses) are not record subjects for purposes of this system.
Consistent with the NIH's responsibilities under Part 93 and the NIH Policy, this system notice applies to alleged or actual research misconduct (fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results) involving research: (1) Carried out in NIH facilities by any person; (2) funded by the NIH Intramural Research Program (IRP) in any location; or (3) undertaken by an NIH employee or trainee as part of his or her official NIH duties or NIH training activities, regardless of location. A person who, at the time of the alleged or actual research misconduct, was employed by, was an agent of, or was affiliated by contract, agreement, or other arrangement with NIH, is subject to the NIH Policy and covered by this system if, for example, he or she is involved in: (1) NIH- or PHS-supported biomedical or behavioral research; (2) NIH- or PHS-supported biomedical or behavioral research training programs; (3) NIH- or PHS-supported activities that are related to biomedical or behavioral research or research training, such as the operation of tissue and data banks and the dissemination of research information; (4) plagiarism of research records produced in the course of NIH- or PHS-supported research, research training or activities related to that research or research training; or (5) an application or proposal for NIH or PHS support for biomedical or behavioral research, research training or activities related to that research or research training, such as the operation of tissue and data banks and the dissemination of research information (regardless of whether it is approved or funded).
The term “research misconduct” is defined to mean “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” “Fabrication” is defined to mean “making up data or results and recording or reporting them.” “Falsification” is “manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.” “Plagiarism” is “the appropriation of another person's ideas, processes, results, or words without giving appropriate credit.” Research misconduct does not include honest error or differences of opinion. 42 CFR 93.103.
This system contains records related to research misconduct proceedings. The term “research misconduct proceeding” is defined in Part 93 and the NIH Policy to mean “any actions related to alleged research misconduct,” including, but not limited to, allegation assessments, inquiries, investigations, oversight reviews by the Office of Research Integrity (ORI) of the U.S. Department of Health and Human Services (DHHS, HHS or Department), hearings, and administrative appeals.
The records include all information that NIH receives or generates in overseeing or conducting research misconduct proceedings, including the implementation of research misconduct findings, and all information that NIH submits to, or receives from, ORI or other institutions under Part 93. This information includes, but is not necessarily limited to information about respondents (this may include social security numbers), complainants, and witnesses; the nature of the allegations; the NIH or PHS funding involved, including grant numbers; the offices, Institutes, Centers, and officials responsible for conducting the actions that are part of the research misconduct proceeding; the documentation used in the assessment, inquiry, and investigation, including relevant research data and materials, applications, proposals and documentation related to review and award actions, reports, abstracts, manuscripts and publications by the respondent(s) and other relevant reports, abstracts, manuscripts and publications; correspondence; memoranda of telephone calls, summaries of interviews and transcripts or recordings of interviews; statistical, scientific, and forensic analyses; interim and final reports; and records of findings, administrative actions, and appeal proceedings, if any.
The legal authorities to operate and maintain this Privacy Act records system are Sections 301, 401, 402, and 405 of the Public Health Service Act (42 U.S.C. 241, 281, 282, and 284); 5 U.S.C. 301; 44 U.S.C. 3101; and 42 CFR part 93.
NIH personnel and any contractors assisting them will use information from this system, on a need-to-know basis, for the following purposes:
1. To enable NIH and its Institutes and Centers (“ICs”) to protect the health and safety of the public, to promote the integrity of NIH- or PHS-supported research, and to conserve public funds;
2. To enable NIH to discharge effectively its responsibilities in managing the NIH intramural research program and in the award and administration of research and training grants, cooperative agreements, and contracts;
3. To ensure that research misconduct proceedings are carried out in accordance with the NIH Policy, 42 CFR Part 93, and other applicable Federal statutes and regulations;
4. To enable NIH to inform other IC, NIH, ORI, PHS, and other HHS agency officials who have a need for the records in the performance of their duties, of the status and results of research misconduct proceedings; and
5. To enable NIH to notify, consult with, and provide assistance to other Federal, State, local, or Tribal governmental agencies to permit them to take action to protect the health and safety of the public, to promote the integrity of NIH- and PHS-supported research, to conserve public funds, or to pursue potential violations of civil and criminal statutes.
A “routine use” is defined in 45 CRF 5b.1(j) to mean “the disclosure of a record outside the Department, without the consent of the subject individual, for a purpose which is compatible with the purpose for which the record was collected.” The routine uses for which NIH will disclose information from this system of records are as follows:
1. Disclosure may be made to any person able to obtain information or provide information or assistance in a research misconduct proceeding or related proceeding. Recipients of disclosures under this routine use may include: Experts asked to perform statistical, forensic or other analyses or otherwise to provide assistance; institutions with which the respondent(s) was previously or is currently affiliated; Federal, State, local, and Tribal governmental agencies; the respondent(s); the complainant(s); witnesses; and organizations or individuals acting on behalf of those institutions, agencies, and individuals; provided, however, in each case NIH determines whether limited disclosures, confidentiality statements, contractual commitments to comply with the requirements of the Privacy Act of 1974, or similar measures are needed to protect the privacy of respondent(s), complainant(s), witnesses, research subjects, or others who may be identified in the records to be disclosed.
2. Disclosure may be made to NIH/DHHS guest researchers, special government employees (SGEs), trainees, volunteers, former employees, contractors, and other persons engaged to perform a service in support of NIH/DHHS related to this system of records, if such persons need access to the records to perform their assigned task; provided, however, in each case NIH/DHHS determines whether limited disclosures, confidentiality statements, contractual commitments to comply with the requirements of the Privacy Act of 1974, or similar measures are needed to protect the privacy of respondent(s), complainant(s), witnesses, research subjects, or others who may be identified in the records to be disclosed; and NIH/DHHS determines that the disclosure is for a purpose compatible with the purpose for which the agency collected the records.
3. Disclosure may be made to other Federal, State, local, or Tribal governmental agencies and offices, if NIH has reason to believe that a research misconduct proceeding may involve that agency or office.
4. When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, disclosure may be made to the appropriate governmental agency, whether Federal, State, local or Tribal, or other public authority responsible for enforcing, investigating or prosecuting such violation, if the information disclosed is relevant to the responsibilities of the agency or public authority.
5. Disclosure may be made to Institutional Review Boards, research-sponsoring institutions, and individual research subjects, regarding information obtained or developed through a research misconduct proceeding that, in NIH's judgment, may have implications for individuals' health or for their participation in a research study.
6. After NIH makes a finding of research misconduct and has informed ORI of the finding, disclosure may be made to responsible officials of NIH- or PHS-supported institutions or organizations, when in connection with a research misconduct proceeding concerning an individual previously or currently employed by, or affiliated with the institution or organization, or when NIH, ORI, or HHS makes a finding or takes an action potentially affecting the institution or organization or its NIH or PHS support for research, research training, or related activities.
7. A record from this system may be disclosed to a Federal, State, local, or Tribal governmental agency maintaining civil, criminal, or other relevant enforcement records, or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an investigation concerning the employment, clearance, suitability, eligibility or retention of an employee or other personnel action, the retention of a security clearance, the letting of a contract, issuance of a benefit or qualification decision made by HHS or NIH. No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action. The other agency or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses. No information will be released that would reveal a confidential source.
8. After NIH makes a finding of research misconduct and has informed ORI of the finding, disclosure may be made to research collaborators of the respondent, professional journals, other publications, news media, professional societies, other individuals and entities, and the public concerning research misconduct findings and the need to correct or retract research results or reports that have been affected by research misconduct, unless NIH determines that release of the specific information in the context of a particular case would constitute a clearly unwarranted invasion of personal privacy. No information will be released that would reveal a confidential source.
9. After NIH makes a finding of research misconduct and has informed ORI of the finding, disclosure may be made to a State or other professional licensing board, certifying body, or other similar entity authorized to conduct a review of the respondent, to aid the entity in meeting its responsibility to protect the health of the population in its jurisdiction or the integrity of the profession.
10. After NIH concludes a research misconduct proceeding without a finding of research misconduct or a settlement, disclosure may be made to the respondent, the complainant, witnesses, or other persons involved in or aware of the research misconduct proceeding; provided, however, in each case NIH determines whether limited disclosures, confidentiality statements, contractual commitments to comply with the requirements of the Privacy Act of 1974, or similar measures are needed to protect the privacy of respondent(s), complainant(s), witnesses, research subjects, or others who may be identified in the records to be disclosed.
11. Disclosure may be made to the Department of Justice (DOJ), a court, or other tribunal, when: (a) The agency or any component thereof; (b) any employee of the agency in his or her official capacity; (c) any employee of the agency in his or her individual capacity
12. A record may be disclosed to appropriate Federal agencies and Department contractors that have a need to know the information for the purpose of assisting the Department's efforts to respond to a suspected or confirmed breach of the security or confidentiality of information maintained in this system of records, if the information disclosed is relevant and necessary for that assistance.
13. Disclosure may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made pursuant to the written request of the individual and if disclosure does not compromise the law enforcement activities of the Office of Research Integrity or other government agency.
14. NIH may disclose information to the National Archives and Records Administration (NARA), General Services Administration (GSA), or other Federal government agencies pursuant to records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
15. Records may become accessible to U.S. Department of Homeland Security (DHS) cyber security personnel, if captured in an intrusion detection system used by HHS and DHS pursuant to the Einstein 2 program. Under Einstein 2, DHS uses intrusion detection systems to monitor Internet traffic to and from federal computer networks to prevent malicious computer code from reaching the networks. According to DHS' Privacy Impact Assessment for Einstein 2 (available on the DHS Cybersecurity privacy Web site,
NIH may also disclose information from this system as authorized directly in the Privacy Act at 5 U.S.C. 552a(b).
Records will be stored in various electronic media and paper form, and maintained under secure conditions in limited access areas or with controlled access. Only authorized users whose official duties require the use of this information will have regular access to the records in this system.
In accordance with established NIH, HHS and other Federal security policies and controls, records may also be located, maintained and accessed from secure servers whenever feasible or located on portable/mobile devices including, but not limited to: Laptops, PDAs, USB drives, portable hard drives, Blackberrys, iPods, CDs, DVDs, electronic readers, and/or other portable/mobile storage devices. Records are maintained on portable/mobile storage devices only for valid, business purposes, with prior approval, and in accordance with all applicable NIH, HHS and Federal security requirements, policies and controls.
Records will be retrieved by manual or computer search using a unique case number or the name of the respondent(s) (i.e., the individual or individuals who are the subject of an allegation of research misconduct or of a research misconduct proceeding).
Measures to prevent unauthorized disclosures are implemented as appropriate for each location or form of storage and for the types of records maintained. Site(s) implement personnel and procedural safeguards such as the following:
Access is strictly limited to ensure least privilege by authorized personnel whose duties require such access (
Controls to secure the data and protect paper and electronic records, buildings, and related infrastructure against threats associated with their physical environment include, but are not limited to the use of the HHS Employee ID and/or badge number and NIH key cards and security guards. Paper records are secured in locked file cabinets, offices and facilities. Electronic media are kept on secure servers or computer systems. Data on computer files is accessed by a password known only to authorized users who have a need for the data in the performance of their duties as determined by the System Manager. During regular business hours, rooms in this restricted area are unlocked but entry is controlled by on-site personnel. Security guards perform random checks on the physical security of the storage locations after duty hours, including weekends and holidays. The NIH main campus in Bethesda, Maryland is protected by perimeter barriers and limited points of access, security personnel, and intrusion alarms. Electronic access to computer files is strictly limited through passwords and user-invisible encryption. Special measures commensurate with the sensitivity of the record are taken to prevent unauthorized copying or disclosure of the records. Individually identifiable records are kept in locked file cabinets or in rooms under the direct control of the System Manager. Contractor interaction with records covered by this system will occur on-site and no physical records (paper or electronic) will be allowed to be removed from the NIH Office of Intramural Research unless authorized. All authorized users of personal information in connection with the performance of their jobs protect information from public view and from unauthorized personnel entering an unsupervised area/office.
Controls to ensure proper protection of information and information technology systems include, but are not limited to the completion of a Certification and Accreditation (C&A) package and a Privacy Impact Assessment (PIA) for associated information technology systems, a system security plan, a contingency or back-up plan, user manuals, and mandatory completion of annual NIH Information Security and Privacy Awareness training. All authorized users of personal information in connection with the performance of their jobs (see Authorized Users, above) protect information from public view and from unauthorized personnel entering an unsupervised area/office. When the design, development, or
Controls are generally executed by the computer system and are employed to minimize the possibility of unauthorized access, use, or dissemination of the data in the system. They include, but are not limited to user identification, password protection, firewalls, virtual private network, encryption, intrusion detection system, common access cards, smart cards, biometrics and public key infrastructure.
Records will be maintained for 7 years in accordance with 42 CFR Part 93 and retained and disposed of under the authority of the NIH Records Control Schedule contained in Manual Chapter 1743, “Keeping and Destroying Records”, Appendix 1, item 1700-A-3. Refer to the NIH Manual Chapter for specific retention and disposition instructions:
The agency official responsible for the system policies and practices outlined above is:
NIH Agency Intramural Research Integrity Officer (AIRIO), Office of Intramural Research (OIR), National Institutes of Health (NIH), 9000 Rockville Pike, Bethesda, Maryland 20892.
This system will be exempt from the Privacy Act provision requiring procedures for notifying an individual, upon his or her request, if the system contains a record about him or her. However, consideration will be given to requests addressed to the System Manager listed above. Any individual who wishes to know if this system contains a record about him or her may make a written request to the System Manager.
This system will be exempt from access. However, because the access exemption is limited and discretionary, consideration will be given to access requests addressed to the System Manager. The requester must verify his or her identity by providing either a notarization of the request or a written certification that he or she is who he or she claims to be and understands that the knowing and willful request of a record pertaining to an individual under false pretenses is a criminal offense under the Privacy Act, subject to a fine of up to five thousand dollars. If records are requested on behalf of a minor or legally incapacitated person, a statement of guardianship/conservatorship must be included. Requesters should also reasonably specify the record contents being sought. Requests should include (a) full name, (b) address, (c) the approximate date(s) the information was collected, (d) the types of information collected, and (e) the office or official responsible for the collection of information, etc. Individuals may also request an accounting of disclosures that have been made of their records, if any, if the System Manager determines that disclosure would not compromise the law enforcement activities of the NIH Office of Intramural Research. (These access procedures are in accordance with Department regulation (45 CFR 5b.5(a)(2)).
This system will be exempt from redress. However, records that contain factually incorrect information may be amended. To contest such information, write to the System Manager at the address specified above, and reasonably identify the record and specify the information to be contested, the corrective action sought, and the reason(s) for requesting the correction, along with supporting information. The right to contest records is limited to information which is factually inaccurate, incomplete, irrelevant, or untimely (obsolete).
Information in this system is received or obtained from many sources, including: (1) Directly from the complainant or respondent or his/her representative; (2) derived from materials supplied by the complainant or respondent or his/her representative; (3) from information supplied by institutions, witnesses, scientific publications or other nongovernmental sources; (4) from observation and analysis made by NIH staff, guest researchers, SGEs, trainees, volunteers, former employees, contractors, and other persons engaged to perform a service in support of NIH; (5) departmental and other Federal, State, local, and Tribal government records; (6) from hearings and other administrative proceedings; and (7) from any other relevant source.
Pursuant to 5 U.S.C. 552a (k)(2) and (k)(5) of the Privacy Act, the system will be exempted from the Privacy Act requirements pertaining to providing an accounting of disclosures, access and amendment, notification, and agency procedures and rules (5 U.S.C. 552a (c)(3), (d)(1)-(4), (e)(4)(G)-(H), and (f)). NIH believes that these exemptions are necessary to maintain the integrity of the research misconduct proceedings and to ensure that the NIH's efforts to obtain accurate and objective information will not be hindered. However, any individual who has been denied any right, privilege, or benefit to which he or she otherwise would have been entitled as a result of the maintenance of such material will be given access to the material, unless disclosure of the material would reveal the identity of a source who furnished information to the Government under an express promise of confidentiality.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces U.S. Customs and Border Protection's (CBP's) plan to conduct a general test to further develop the Centers of Excellence and Expertise (CEEs) to facilitate the entry of merchandise imported by companies within certain industries. This document involves testing how the following four CEEs will operate with broad decision-making authority: the Electronics CEE; Pharmaceuticals, Health & Chemicals CEE; the Automotive & Aerospace CEE; and the Petroleum, Natural Gas & Minerals CEE. This notice invites public comment concerning the methodology of the test program, identifies the purpose of the test and the regulations that will be affected, determines the length of the test, explains the application process, and provides the eligibility and selection criteria for voluntary participation in the test. This document also provides the legal authority for the test and explains the repercussions and appeals process for misconduct under the test.
Applications for participation in the test may be submitted beginning August 28, 2012. The selection of initial test participants will begin no later than September 27, 2012. Applications will be accepted throughout the duration of this test. Selected applicants will be individually notified of their participation date.
To submit comments concerning this test program: send an email to
Lori Whitehurst, Program Manager, Office of Field Operations, at (202) 344-2536; or Thomas Overacker, Project Coordinator, Office of International Trade at (859) 331-9020 ext. 137.
In October 2011, U.S. Customs and Border Protection (CBP) established two Centers of Excellence and Expertise (CEEs): The Electronics CEE in Long Beach, California and the Pharmaceuticals CEE in New York City, New York. Since their initiation in October 2011, the CEEs have been staffed with CBP employees who facilitate trade by providing account management for Customs-Trade Partnership Against Terrorism (C-TPAT) and Importer Self-Assessment (ISA) members in the identified industries, and engaging in risk segmentation and trade outreach. The CEEs have the ability to review entries and the CEE Directors, who are tasked with leading the CEEs, may make entry processing recommendations to the Port Directors concerning pharmaceutical and electronics entries. The Electronics CEE specializes in merchandise related to information technology, integrated circuits, automated data processing equipment, and consumer electronics. The Pharmaceuticals CEE will now be called the
On May 10, 2012, the Acting Commissioner of CBP announced at the West Coast Trade Symposium two new CEEs: The Automotive & Aerospace CEE in Detroit, Michigan, and the Petroleum, Natural Gas & Minerals CEE in Houston, Texas. The Automotive & Aerospace CEE will specialize in merchandise related to the automotive, aerospace, or other transportation equipment and related parts industries. The Petroleum, Natural Gas & Minerals CEE will specialize in merchandise related to the petroleum, natural gas, petroleum related, minerals, or mining industries.
This document announces a general test to provide broad decision-making authority to the: Electronics CEE; Pharmaceuticals, Health & Chemicals CEE; Automotive & Aerospace CEE; and Petroleum, Natural Gas & Minerals CEE. Specifically, the test waives certain regulations to the extent that they provide Port Directors with the authority to make certain decisions. Those regulations are waived only to the extent to allow the CEE Directors for the four identified CEEs to make those decisions.
This document identifies the purpose of the test and the regulations that will be affected, determines the length of the test, explains the application process, and provides the eligibility and selection criteria for voluntary participation in the test. This document also provides the legal authority for the test and explains the repercussions and appeals process for misconduct under the test.
CBP's goal is to incrementally transition the operational trade functions that traditionally reside with the ports of entry until they reside entirely with the CEEs. By focusing on industry-specific issues and providing tailored support for the participating importers, CBP is seeking to facilitate trade, to reduce transaction costs, increase compliance with applicable import laws, and to achieve uniformity of treatment at the ports of entry for the identified industries. CBP believes that providing broad decision-making authority to the CEEs for entry processing issues will better enable the CEEs to achieve these goals for CBP and the trade.
Currently, pursuant to the CBP regulations in title 19 of the Code of Federal Regulations (19 CFR), Port Directors have the authority to make decisions regarding products imported into the ports. For this test, regulations in the following sections of title 19 of the CFR (19 CFR) providing Port Directors with certain decision-making authority will be waived only to the extent to provide the CEE Directors with the authority to make those decisions: §§ 10.1, 10.8, 10.9, 10.21, 10.24, 10.66, 10.67, 10.84, 10.91, 10.102, 10.134, 10.172-10.175, 10.177, Subparts B-K, M, N, and P of Part 10, §§ 12.3, 12.73(j) and (k), 12.80, 12.121(a)(2)(ii); Part 113; §§ 134.3, 134.25, 134.26, 134.34, 134.51, 134.52, 134.53, 134.54 (a)
When test participants file an entry in a port, the required entry documents will be routed to the CEE assigned to that importer and certain revenue-related functions, including but not limited to those indicated below, will be performed by the applicable CEE Director instead of the Port Director:
• Determinations, notifications, and processing concerning duty refund claims based on 19 U.S.C. 1520(d) (
• Requests for computed value information (
• Waivers of invoice requirements (
• Determinations concerning the time of submission for all entry summaries and estimated duties (
• Issuances of all Requests for Information (CBP Form 28) (
• Issuances of all Notices of Action (CBP Form 29) (
• Notifications and processing concerning any commingling of merchandise (
• Processing of requests for application of the computed value method (
• Extensions and suspensions of liquidations (
• Reviewing and correcting for errors in transactions (
• Reviewing and acting on protests (
For this test, § 162.74(e)(1) is also waived insofar as test participants will be required to file any prior disclosures with their designated CEE rather than at the port of entry.
The following determinations do not require the waiver of regulations, but are determinations that would usually otherwise be made by the Port Directors, and will be made by the CEE Directors under this test: performing all validation activities; reviewing and processing of post entry amendments and post summary corrections; and fixing the final appraisement of merchandise, and fixing the classification and duty rate of such merchandise.
The following is a list of processes that will change for test participants effective upon the beginning of this test:
• Requests for entry cancellations must be submitted electronically to the CEE;
• Census resolution processes will be handled by the CEE, therefore, rejected ACS entry summaries must be electronically transmitted to the CEE's email address, unless other arrangements have been made with the CEE to resolve Census issues;
• Timely responses to Requests for Information (CBP Form 28) and Notices of Action (CBP Form 29) must be sent directly to the CEE;
• Requests for Internal Advice must be submitted electronically to the CEE for further coordination with the Office of International Trade, Regulations and Rulings; and
• Protests must be filed via the electronic protest module in ACS (including a note in the filing that designates the CEE team), or, submitted electronically on a scanned copy of the CBP Form 19 with all supporting documents to the CEE via the ACE Portal or the CEE's email address.
Unless specified in this document or in the “Centers of Excellence and Expertise Test Guidelines” (CEE Test Guidelines), which will be posted on the web at
• Quota entry summaries will continue to be processed by the ports of entry;
• The bulletin notice of liquidation (CBP Form 4333) will continue to be posted at the ports of entry;
• Revenue collection and the resolution of discrepancies in the amount of monies presented will remain with the ports of entry;
• Requests for further review and requests to void the denial of the protests will continue to be issued by Regulations and Rulings, Office of International Trade;
• Entry filers must continue to file Electronic Invoice Program (EIP) and Remote Location Filing (RLF) entry summaries as usual in the Automated Commercial Environment (ACE); and
• Entry filers must continue to submit entry summaries through the Automated Commercial System (ACS) or ACE and will not be required to change the respective port of entry.
All of the regulations cited above that require waiving to provide the CEE Directors with authority to make decisions that are otherwise designated for the Port Director will be waived at the start of the test, with the exception of §§ 159.7 and 191.61, which will be waived on a date that will be indicated in the CEE Test Guidelines. CBP will be posting the CEE Test Guidelines on the web to provide information regarding CEE operations. Test participants must check the CEE Test Guidelines on a weekly basis to determine: (1) How their responsibilities and required processes will differ from non-CEE participants and the effective date of the new responsibility or required processes; (2) whether the new responsibilities and required processes are being changed again and the effective date of the change; (3) whether there will be a change to any procedure that is required by CBP in a manner otherwise than by regulation, e.g., reconciliation test notice; and (4) when §§ 159.7 and 191.61 will be waived.
All changes to procedures during the test will be posted in the CEE Test Guidelines two weeks before the change goes into effect.
The broad decision-making authority provided to the CEEs and the new processes for entry filers will apply only to participants in the test. Port Directors will continue to make these decisions for all other importers. Decisions made by a CEE which are within the authority granted under this test shall govern the transactions to which they pertain; test participants may not seek to have such decisions referred to a Port Director or another CEE Director. For efficiency and trade facilitation, all consumption entries filed before and during participation in the test, except for antidumping and countervailing duty entries, will be processed by the designated CEE, regardless of the commodity listed on the entry line. These entries will continue to be processed by the CEE, even if the test participant voluntarily withdraws from the test. Similarly, regardless of whether a protestable decision was made by a Port Director or a CEE Director, any protests filed after participation in the test commences will be processed and decided upon by the CEE Director. The processing and decision-making authority for these protests will remain with the CEE Director, even if the test participant voluntarily withdraws from the test.
This test is intended to last three years from October 12, 2012. At the conclusion of the test, an evaluation will be conducted to assess the effect that providing CEEs with broad decision-making authority has on improving trade facilitation, lowering transaction costs for importers, and ensuring importers' compliance with applicable import laws and CBP uniformity of actions. CBP plans to publish a notice when the test closes.
Importers of the products defined in the “Eligibility Criteria for Voluntary Participation” section of the document, that meet the eligibility criteria indicated in that section, and wish to participate must submit a letter to U.S. Customs and Border Protection, Office of Field Operations, Trade Operations Division, 1300 Pennsylvania Ave., NW., Suite 2.3D, Washington, DC 20229, or an email to
Test participants will be required to update their designated CEE with any added IOR numbers during the course of the test.
All C-TPAT and ISA members currently participating in the existing CEEs will also need to apply for the test if they wish to participate in this test.
Additional participants may join throughout the duration of the test by following the procedures above.
For inclusion in the Electronics CEE, applicants must be part of the electronics industry, with the highest percentage of their entries comprised of related merchandise. For the purposes of this test “electronics” includes merchandise classified under headings 3818, 8471, 8473, 8501 through 8504, 8517 through 8538, and 8540 through 8548 of the Harmonized Tariff Schedule of the United States (HTSUS).
For inclusion in the Pharmaceuticals, Health & Chemicals CEE, applicants must be part of the pharmaceuticals, health, or chemical and allied industries, with the highest percentage of their entries comprised of related merchandise. For purposes of this test, “pharmaceuticals” includes merchandise classified under headings 2936, 2937, 2939, 2941, 3001 through 3006, HTSUS. For purposes of this test, “health equipment” includes merchandise classified under headings 4014, 9018, 9019, 9021, 9022, and 9402, HTSUS. For purposes of this test, “chemicals” includes merchandise classified under headings 2801 through 2935, 2938, 2940, 2942, 3101 through 3302, 3402 through 3405, 3407 through 3604, 3606 through 3817, and 3819 through 3825, HTSUS.
For inclusion in the Automotive & Aerospace CEE, applicants must be part of the automotive, aerospace, or other transportation equipment and related parts industries, with the highest percentage of their entries comprised of related merchandise. For purposes of this test, “automotive” includes merchandise classified under headings 8701 through 8711, 8713, 8714, and 8716, HTSUS. For the purposes of this test, “aerospace” includes merchandise classified under headings 8801 through 8805, HTSUS. For the purposes of the test “other transportation equipment and related parts” includes but is not limited to merchandise classified under headings 4011 through 4013, 8406 through 8412, 8512, 8601 through 8609, 8901 through 8908, HTSUS.
For inclusion in the Petroleum, Natural Gas & Minerals CEE, applicants must be part of the petroleum, natural gas, petroleum related, minerals, or mining industries, with the highest percentage of their entries comprised of related merchandise. For purposes of this test, “petroleum” and “natural gas” include merchandise classified under headings 2709 through 2713, HTSUS. For the purposes of this test, “petroleum related” includes merchandise classified under headings 2701, 2705, 2707, 2708, 2714, 2715 and 2716, HTSUS. For the purposes of this test, “minerals” or “mining” include merchandise classified under headings 2501 through 2621, 2702, 2703, 2704, and 2706, HTSUS.
Participants in any CEE must also have an ACE portal account.
Importers that meet the criteria above may be selected for inclusion in the test. In the initial phase of the test priority consideration for participation will be given to importers enrolled in the C-TPAT Program as Tier 2 or Tier 3 members, and members of the Importer Self-Assessment (ISA) Program. CBP will notify the selected applicants in writing of their selection, their designated CEE, and the starting date of their participation. Selected participants may have different starting dates.
Section 101.9(a) of the CBP regulations (19 CFR 101.9(a)) allows CBP to conduct a test program or procedure to evaluate the effectiveness of operational procedures regarding the processing of passengers, vessels, or merchandise by imposing requirements different from those specified in the CBP regulations but only to the extent that such different requirements do not affect the collection of the revenue, public health, safety, or law enforcement. This test is established pursuant to 19 CFR 101.9(a) to test the effectiveness of new operational procedures. Revenue collection will continue to be handled electronically through the Automated Clearing House (ACH) and by the ports of entry and the test will not affect public health, safety, or law enforcement.
A CEE test participant may be subject to civil and criminal penalties, administrative sanctions, liquidated damages, and/or discontinuance from participation in this test for any of the following:
• Failure to follow the terms and conditions of this test.
• Failure to exercise reasonable care in the execution of participant obligations.
• Failure to abide by applicable laws and regulations that have not been waived.
• Failure to deposit duties or fees in a timely manner.
If the CEE Director finds that there is a basis for discontinuance of test participation privileges, the test participant will be provided a written notice proposing the discontinuance with a description of the facts or conduct warranting the action. The test participant will be offered the opportunity to appeal the CEE Director's decision in writing within 10 calendar days of receipt of the written notice. The appeal must be submitted to U.S. Customs and Border Protection, Office of Field Operations, Cargo and Conveyance Security (CCS) Division, 1300 Pennsylvania Ave., NW., Suite 2.3D, Washington, DC 20229 or by email to
In the case of willfulness or those in which public health, interest, or safety so requires, the CEE Director may immediately discontinue the test participant's participation privileges upon written notice to the test participant. The notice will contain a description of the facts or conduct warranting the immediate action. The test participant will be offered the opportunity to appeal the CEE Director's decision within 10 calendar days of receipt of the written notice providing for immediate discontinuance. The appeal must be submitted to U.S. Customs and Border Protection, Office of Field Operations, CCS Division, 1300 Pennsylvania Ave., NW., Suite 2.3D, Washington, DC 20229 or by email to
Office of Policy Development and Research, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Reports Liaison Officer, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street, SW., Room 8234, Washington, DC 20410.
Sarah Gillespie at (202) 402-5843 (this is not a toll-free number). Copies of the proposed forms and other available documents submitted to OMB may be obtained from Ms. Gillespie.
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Enhance the quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology that will reduce burden, (e.g., permitting electronic submission of responses).
This Notice also lists the following information:
The Office for International and Philanthropic Innovation (IPI) supports HUD's efforts to find new solutions and align ideas and resources by working across public, private, and civil sectors to further HUD's mission. IPI works towards these goals by developing networks and facilitating collaboration of key partners and resources. To gather feedback on the various meetings, conferences, and other events and activities IPI presents, it is necessary to survey participants at both immediate and medium-term intervals. IPI is seeking to understand the effectiveness of these events in sharing information, connecting participants, establishing plans for coordination, and influencing programmatic, research, and funding agendas and resources. As we increase the effectiveness of these cross-sector convenings, HUD benefits from increased access to and synthesis of information regarding successes and failures in domestic and global housing and urban development. Residents and communities across the country also benefit from the increased impact achieved by alignment of cross-sector resources and ideas.
Estimation of the total number of hours needed to prepare the information collection including number of respondents, frequency of response, and hours of response:
Title 13 U.S.C. Section 9(a), and Title 12, U.S.C., 1701z-1
United States Geological Survey (USGS), Interior.
Notice of an extension of a currently approved information collection, 1028-0095.
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. To comply with the Paperwork Reduction Act of 1995 (PRA) and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This collection is scheduled to expire on January 31, 2013.
You must submit comment on or before October 29, 2012.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); 703-648-7199 (Fax); or
John E. Schefter, Chief Office of External Research, U.S. Geological Survey, 12201 Sunrise Valley Drive, MS 424, Reston, Virginia 20192 (mail) at (703) 648-6800 (Phone); or
No questions of a “sensitive” nature are asked. We intend to release the project abstracts and primary investigators for awarded/funded projects only.
U.S. Geological Survey, Interior.
Notice of meeting.
The National Geospatial Advisory Committee (NGAC) will meet on September 18-19, 2012 at the American Institute of Architects Building, 1735 New York Avenue NW., Washington, DC 20006. The meeting will be held in the Gallery Room. The NGAC, which is composed of representatives from governmental, private sector, non-profit, and academic organizations, was established to advise the Federal Geographic Data Committee on management of Federal geospatial programs, the development of the National Spatial Data Infrastructure, and the implementation of Office of Management and Budget (OMB) Circular A-16. Topics to be addressed at the meeting include:
• Leadership Dialogue
• Geospatial Platform
• Geolocation Privacy
• FGDC Report
• COGO Report Card
• Subcommittee Reports
The meeting will include an opportunity for public comment on September 19. Comments may also be submitted to the NGAC in writing. Members of the public who wish to attend the meeting must register in advance. Please register by contacting Arista Maher at the U.S. Geological Survey (703-648-6283,
The meeting will be held from 8:30 a.m. to 5:30 p.m. on September 18 and from 8:30 a.m. to 4:00 p.m. on September 19.
John Mahoney, U.S. Geological Survey (206-220-4621).
Meetings of the National Geospatial Advisory Committee are open to the public. Additional information about the NGAC and the meeting is available at
Bureau of Land Management, Interior.
Notice of availability.
The Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for San Diego Gas and Electric's (SDG&E) East County (ECO) Substation Project, located in San Diego County, California. The Secretary of the Interior approved the ROD on August 21, 2012, which constitutes the final decision of the Department.
Copies of the ROD have been sent to responsible Federal, State, and local government agencies and other interested stakholders, and are available upon request from the Field Manager, BLM El Centro Field Office, 1661 S. 4th Street, El Centro, California 92243, and the BLM California Desert District Office, 22835 Calle San Juan de Los Lagos, Moreno Valley, California 92553, or via the Internet at the following Web site:
R. Brian Paul, Project Manager, telephone 760-337-4400; address BLM California Desert District Office, 22835 Calle San Juan de Los Lagos, Moreno Valley, California 92553-9046; email
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
SDG&E filed right-of-way (ROW) application CACA-51625 for the ECO Substation Project. The ECO Substation Project will provide an interconnection hub for renewable generation along SDG&E's existing Southwest Powerlink (SWPL) 500-kilovolt (kV) transmission line. The project will consist of a 500/230/138 kV substation; a SWPL Loop-In (a short loop-in of the existing SWPL transmission line to the proposed ECO Susbstation); the rebuilt Boulevard Substation (an existing substation); and a 13.9-mile 138 kV transmission line connecting the new ECO Substation to the rebuilt Boulevard Substation, 0.8 mile of which is on public lands administered by the BLM (the reminder is located on private lands subject to the permitting authority of the California Public Utilties Commission). Through the ROD, the BLM approves the 0.8-mile portion of the 138 kV transmission line on BLM-administered public land, and makes no decision regarding those portions of the ECO Substation Project or other projects analyzed in the Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) that are not located on BLM-managed lands.
The project site is located approximately 70 miles east of downtown San Diego, south of Interstate 8, east of the town of Jacumba and along Old Highway 80, in San Diego County, California, within Township 18 South, Ranges 8 East, Section(s) 02, 03, 10, and 11.
The BLM preferred alternative would allow the construction, operation, maintenance, and termination of the 0.8-mile underground segment of the project's 138 kV transmission line on BLM-managed lands, which is necessary for the construction of the ECO Substation Project. In addition to the ECO Substation Project, the Final EIS/EIR evaluated a ROW application by Tule Wind, LLC to construct the Tule Wind Project, as well as the Energia Sierra Juarez Project, and Gen-Tie, Campo, Manzanita wind energy projects. Although these project components were analyzed in the same EIS/EIR, only the 0.8-mile underground segment of the ECO Substation Project 138 kV transmission line and portions of the Tule Wind Project would be located on BLM-managed lands. The BLM issued a separate decision on Tule Wind, LLC's ROW application on December 20, 2011.
This agency preferred alternative was evaluated in the Final EIS/EIR. The Notice of Availability of the Final EIS/EIR for the ECO Substation Project was published in the
Because this decision is approved by the Secretary of the Interior, it is not
40 CFR 1506.6
Bureau of Land Management.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) has prepared the Proposed Resource Management Plan (RMP) and Final Environmental Impact Statement (EIS) for the Bakersfield Field Office, California, and by this notice is announcing its availability.
BLM planning regulations state that any person who meets the conditions as described in the regulations may protest the Proposed RMP/Final EIS. A person who meets the conditions must file the protest within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability of the Proposed RMP/Final EIS in the
Copies of the Bakersfield Proposed RMP/Final EIS have been sent to affected Federal, State, and local agencies, Native American tribes, and to other interested parties. Copies of the Proposed RMP/Final EIS are available for public inspection at the Bakersfield Field Office (3801 Pegasus Drive, Bakersfield, California 93308) and California State Office (2800 Cottage Way, Sacramento, California 95825). Interested persons may also review the Proposed RMP/Final EIS on the Internet at:
Sue Porter, Planning & Environmental Coordinator, Bakersfield Field Office, telephone: 661-391-6022; address: Bakersfield Field Office, 3801 Pegasus Drive, Bakersfield, California 93308; email:
The Proposed RMP/Final EIS addresses public land and resources managed by the Bakersfield Field Office in an eight-county, 17-million-acre region of central California in Kings, San Luis Obispo, Santa Barbara, Tulare, Ventura, Madera, eastern Fresno, and western Kern counties. Upon approval, this land use plan will replace the 1997 Caliente RMP and the 1984 Hollister RMP, as amended, and provide updated management decisions regarding recreation, transportation and access, renewable and traditional energy development, mineral resources, land use authorizations, livestock grazing, biological resources, special designations, lands with wilderness characteristics, and other resource uses and considerations on approximately 404,000 acres of public land and 1.2 million acres of Federal mineral estate. The Approved RMP will apply only to the BLM-administered public lands and Federal mineral estate in the planning area.
The Proposed RMP/Final EIS analyzes five management alternatives:
• The No Action alternative (Alternative A) would continue current management under the existing 1997 Caliente RMP and 1984 Hollister RMP, as amended.
• The Proposed Plan (Alternative B) strives to balance resource conservation and ecosystem health with the production of commodities and public use of the land.
• Alternative C emphasizes conserving cultural and natural resources, maintaining functioning natural systems, and restoring natural systems that are degraded.
• Alternative D follows Alternative C in all aspects except with regard to livestock grazing. Alternative D would eliminate livestock grazing from BLM managed lands in the planning area for the life of this land use plan.
• Alternative E emphasizes the production of natural resources and commodities while emphasizing public use opportunities.
The land use planning process was initiated on March 4, 2008, through a Notice of Intent published in the
During the comment period, the Bakersfield Field Office received 274 written comment submissions from comment forms, which were completed during one of the public open-house meetings, as well as comment letters and emails. Each submission was carefully reviewed to identify substantive comments in accordance with the implementing regulations of NEPA (40 CFR 1503.4).
Comments on the Draft RMP/Draft EIS received from the public and internal
Instructions for filing a protest with the Director of the BLM regarding the Proposed RMP/Final EIS may be found in the “Dear Reader” letter of the Proposed RMP/Final EIS and at 43 CFR 1610.5-2. All protests must be in writing and mailed to the appropriate address, as set forth in the
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2, and 43 CFR 1610.5-2.
Bureau of Land Management, U.S. Department of the Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Boise District Resource Advisory Council (RAC), will hold a meeting as indicated below.
The meeting will be held September 13, 2012, at the Boise District Office, located at 3948 S. Development Avenue, Boise, Idaho, beginning at 9:00 a.m. and adjourning at 4:30 p.m. Members of the public are invited to attend. A public comment period will be held.
Marsha Buchanan, Supervisory Administrative Specialist and RAC Coordinator, BLM Boise District, 3948 Development Ave., Boise, ID 83705, Telephone (208) 384-3364.
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in southwestern Idaho. Items on the agenda include a report about the two field trips RAC Members attended. A report on the wildland fires within Boise District and the region will be provided. The RAC Members will be briefed on the status of the Gateway West Proposed Transmission Line project. An update on the Paradigm Project will be provided by the District's Fuels Program, and the environmental impact statement for renewal of 25 grazing permits in western Owyhee County. Implementation of the Omnibus Public Lands Management Act of 2009, Subpart F-Owyhee Public Land Management will be reviewed. Each field manager will discuss progress being made on priority actions in their offices. Agenda items and location may change due to changing circumstances. The public may present written or oral comments to members of the Council. At each full RAC meeting, time is provided in the agenda for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance should contact the BLM Coordinator as provided above. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
National Park Service, Interior.
Notice.
The U.S. Department of Agriculture (USDA), Forest Service, Coconino National Forest, in consultation with the appropriate Indian tribe, has determined that the cultural items meet the definition of unassociated funerary objects and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the USDA Forest Service, Southwestern Region.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the USDA Forest Service, Southwestern Region at the address below by September 27, 2012.
Dr. Frank E. Wozniak, NAGPRA Coordinator, Southwestern Region, USDA Forest Service, 333 Broadway Blvd., SE., Albuquerque, NM 87102, telephone (505) 842-3238.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Natural History Museum of Los Angeles County and under the control of the Coconino National Forest that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
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 cultural item(s). The National Park Service is not responsible for the determinations in this notice.
In 1926, three unassociated funerary objects [Catalogue #s A2827.31-1, A2827.31-3 and A2827.31-5] were removed from Elden Pueblo (site NA 142) in Coconino County, AZ, during legally authorized archaeological excavations conducted by Jesse W. Fewkes of the Smithsonian Institution. The Elden Pueblo (site NA 142) is on the Coconino National Forest. These three objects have been curated at the Natural History Museum of Los Angeles County, Los Angeles, CA, since 1931, when the Smithsonian Institution transferred the objects to the musem. The three unassociated funerary objects are two ceramic bowls and one ceramic jar.
Based on archaeological evidence and material culture, Elden Pueblo (site NA 142) has been identified as a Northern Sinagua site, comprised of a pueblo, pithouses, and outlier pueblos, which were occupied in the second half of the 13th and the first quarter of the 14th centuries A.D. The records at the Natural History Museum of Los Angeles County and the Smithsonian Institution indicate that these three cultural items were removed from a burial context and that the human remains were either left in the ground or are not locatable at the present time. Continuities among the ethnographic materials in the Flagstaff area of north central Arizona indicate that the Northern Sinagua sites in that area are affiliated with the Hopi Tribe, Arizona. In addition, oral traditions presented by representatives of the Hopi Tribe support their claims of cultural affiliation with Northern Sinagua sites in this portion of north central Arizona.
Officials of the USDA Forest Service, Southwestern Region and the Coconino National Forest have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the three cultural items 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 and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Hopi Tribe, Arizona.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact Dr. Frank E. Wozniak, NAGPRA Coordinator, Southwestern Region, USDA Forest Service, 333 Broadway Blvd., SE., Albuquerque, NM 87102, telephone (505) 842-3238 before September 27, 2012. Repatriation of the unassociated funerary objects to the Hopi Tribe, Arizona, may proceed after that date if no additional claimants come forward.
The Coconino National Forest is responsible for notifying the Hopi Tribe, Arizona, that this notice has been published.
National Park Service, Interior.
Notice.
The Arizona State Museum, University of Arizona, in consultation with the appropriate Indian tribes, has determined that the cultural items meet the definition of unassociated funerary objects and repatriation to the Indian tribes stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural items may contact the Arizona State Museum, University of Arizona.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural items should contact the Arizona State Museum, University of Arizona, at the address below by September 27, 2012.
John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, P.O. Box 210026, Tucson, AZ 85721, telephone (520) 626-2950.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items in the possession of the Arizona State Museum, University of Arizona, Tucson, AZ, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
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 cultural items. The National Park Service is not responsible for the determinations in this notice.
The unassociated funerary objects are six ceramic bowls, four ceramic jars, two ceramic pitchers, and three ceramic sherds. The funerary objects were removed from the Burruel site, AZ AA:16:58 (ASM), which is located on private land adjacent to the San Xavier Indian Reservation, Pima County, AZ. The Burruel site was inadvertently discovered in 1979 by the property owner and excavation of human remains and funerary objects was conducted by staff from the Arizona State Museum. The human remains and funerary objects were brought to the Arizona State Museum for documentation. The funerary objects were returned to the property owner later that same year. In 1980, the property owner transferred control of the human remains to the Arizona State Museum. The human remains were reported in a Notice of Inventory Completion in the
Father Eusebio Kino visited the O'odham village of Bac in 1692 and established Mission San Xavier. He reported the presence of 800 inhabitants at the time of his first visit. O'odham people have continued to occupy the land in the vicinity of the mission throughout the historic period. They also identify themselves with the Hohokam Archeological tradition. Cultural continuity between the prehistoric occupants of the region and present day O'odham and Puebloan peoples is supported by continuities in settlement pattern, architectural technologies, basketry, textiles, ceramic technology, ritual practices, and oral
Officials of the Arizona State Museum, University of Arizona have determined that
• Pursuant to 25 U.S.C. 3001(3)(B), the 15 cultural items 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 and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Ak Chin Indian Community of the Maricopa (Ak Chin) Indian Reservation, Arizona; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Hopi Tribe of Arizona; Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; Tohono O'odham Nation of Arizona; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the unassociated funerary objects should contact John McClelland, NAGPRA Coordinator, Arizona State Museum, University of Arizona, P.O. Box 210026, Tucson, AZ 85721, telephone (520) 626-2950, before September 27, 2012. Repatriation of the unassociated funerary objects to The Tribes may proceed after that date if no additional claimants come forward.
The Arizona State Museum is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice; correction.
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 possession of the Brigham Young University Museum of Peoples and Cultures, Provo, UT. The human remains and associated funerary objects were removed from San Juan County, UT.
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.
This notice corrects the minimum number of individuals and the number of associated funerary objects published in a Notice of Inventory Completion in the
In the
At an unknown date, human remains representing a minimum of six individuals were removed from an unknown location in Iceberg Canyon near Lake Powell, San Juan County, UT, by private individuals. No further geographical information is known. In 1971, the human remains were donated to the Museum of Peoples and Cultures and were accessioned (Catalog Nos. 1971.11.5.0 and 1971.19.1.0). No known individuals were identified. The two associated funerary objects are one lot of clothing fragments and one piece of petrified wood.
In the
Officials of the Museum of Peoples and Cultures have determined that, pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of 39 individuals of Native American ancestry. Officials of the Museum of Peoples and Cultures also have determined that pursuant to 25 U.S.C. 3001(3)(A), the 139 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.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects should contact Paul Stavast, Museum of Peoples and Cultures, Brigham Young University, 105 Allen Hall, Provo, UT 84602-3600, telephone (801) 422-0018, before September 27, 2012. Repatriation of the human remains and associated funerary objects to the Hopi Tribe of Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Kewa Pueblo, New Mexico (formerly the Pueblo of Santo Domingo); 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 Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”), may proceed after that date if no additional claimants come forward.
The Museum of Peoples and Cultures is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice; correction.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the American Museum of Natural History, New York, NY. The human remains were removed from Clallam County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003 (d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
This notice corrects the minimum number of individuals published in a Notice of Inventory Completion in the
In the
In 1899, human remains representing a minimum of 239 individuals were removed from the surface of a sand spit in Port Williams, Clallam County, WA, by Harlan I. Smith during the Jesup North Pacific Expedition.
In the
Officials of the American Museum of Natural History have determined that, pursuant to 25 U.S.C. 3001 (9-10), the human remains described above represent the physical remains of a minimum of 391 individuals of Native American ancestry.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Nell Murphy, Director of Cultural Resources, American Museum of Natural History, 79th Street at Central Park West, New York, NY, 10024, telephone (212) 769-5837, before September 27, 2012. Repatriation of the human remains to the Jamestown S'Klallam Tribe of Washington; Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington; and the Port Gamble Indian Community of the Port Gamble Reservation, Washington, may proceed after that date if no additional claimants come forward.
The American Museum of Natural History is responsible for notifying Jamestown S'Klallam Tribe of Washington; Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington; and the Port Gamble Indian Community of the Port Gamble Reservation, Washington, that this notice has been published.
National Park Service, Interior.
Notice.
The Longyear Museum of Anthropology has completed an inventory of human remains in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the museum. Disposition of the human remains to the Indian tribe stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Longyear Museum of Anthropology at the address below by September 27, 2012.
Dr. Jordan Kerber, Longyear Museum of Anthropology, Department of Sociology and Anthropology, Colgate University, 13 Oak Dr., Hamilton, NY 13346, telephone (315) 228-7559.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains in the possession of the Longyear Museum of Anthropology, Colgate University, Hamilton, NY. The human remains were removed from an unknown location in Marion County, OH.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Longyear Museum of Anthropology professional staff in consultation with representatives of the Little Traverse Bay Bands of Odawa Indians, Michigan. Letters were sent to the following tribes, inviting them to consult: Absentee-Shawnee Tribe of Indians of Oklahoma; Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation, Wisconsin; Chippewa-Cree Indians of the Rocky Boy's Reservation, Montana; Delaware Tribe of Indians, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin; Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Lac Vieux Desert Band of Lake Superior Chippewa Indians, Michigan; Miami Tribe of Oklahoma; Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake); Fond du Lac Band; Grand Portage Band; Leech Lake Band; Mille Lacs Band; White Earth Band); Ottawa Tribe of Oklahoma; Peoria Tribe of Indians of Oklahoma; Pokagon Band of Potawatomi Indians, Michigan and Indiana; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Red Lake Band of Chippewa Indians, Minnesota; Saginaw Chippewa Indian Tribe of Michigan; St. Croix Chippewa Indians of Wisconsin; Sault Ste. Marie Tribe of Chippewa Indians of Michigan;
At an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location described as “Mound Builder grave, Mound B” in Marion County, OH. The human remains were acquired by the Longyear Museum of Anthropology between 1948 and 1979, and accessioned as part of the Howe Collection (catalog number A372). The human remains were subsequently assigned index number 464 in the Colgate Collection database. No known individuals were identified. No associated funerary objects are present.
Officials of the Longyear Museum of Anthropology have determined that:
• Based on the presence of Native American artifacts in the Howe Collection, the description of the site from which the human remains were recovered, and the records in the Longyear Museum of Anthropology, the human remains are Native American.
• 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 any present-day Indian tribe.
• The 1795 Treaty of Greenville (7 Stat. 49, December 2, 1795), indicates that the land from which the Native American human remains were removed is the aboriginal land of the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Tribe of Indians, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Little Traverse Bay Bands of Odawa Indians, Michigan; Shawnee Tribe, Oklahoma; and the Wyandotte Nation, Oklahoma. The Little Traverse Bay Bands of Odawa Indians, Michigan, have at least two signatories on the 1795 Treaty of Greenville (La Malice and Keenoshameek), which ceded land to the United States Government, including land that is now Marion County, OH.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains is to the Little Traverse Bay Bands of Odawa Indians, Michigan.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Dr. Jordan Kerber, Longyear Museum of Anthropology, Department of Sociology and Anthropology, Colgate University, 13 Oak Dr., Hamilton, NY 13346, telephone (315) 228-7559, before September 27, 2012. Disposition of the human remains to the Little Traverse Bay Bands of Odawa Indians, Michigan, may proceed after that date if no additional requestors come forward.
The Longyear Museum of Anthropology is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma; Delaware Tribe of Indians, Oklahoma; Eastern Shawnee Tribe of Oklahoma; Little Traverse Bay Bands of Odawa Indians, Michigan; Shawnee Tribe, Oklahoma; and the Wyandotte Nation, Oklahoma, that this notice has been published.
30-Day Notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until September 27, 2012. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Danielle Ouellette, Department of Justice Office of Community Oriented Policing Services, 145 N Street NE., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that approximately 7,600 annual, quarterly,
(5)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E-508, Washington, DC 20530.
Notice is hereby given that on August 23, 2012, a proposed Consent Decree was lodged with the United States District Court for the District of Massachusetts in
The Consent Decree resolves the United States' and the Conservation Law Foundation's claims of violations under Section 301 of the Clean Water Act, 33 U.S.C. 1311, relating to discharges of pollutants from the Boston Water and Sewer Commission's municipal separate storm sewer system (“MS4”) and wastewater collection system into Boston Harbor and its tributaries. The Consent Decree requires the BWSC to develop and implement various programs to address these discharges, including (a) Improvements to BWSC's program to identify and eliminate illicit discharges to its MS4, (b) stormwater modeling, (c) stormwater control through best management practices, (c) capacity, management, operation and maintenance corrective action, (d) construction site inspection and enforcement, and (e) industrial facility stormwater pollution prevention. BWSC will also pay a civil penalty of $235,000 and implement a supplemental environmental project worth at least $160,000 involving the lining of at least 25 leaking private sewer laterals that have been identified as sources of sewage to BWSC's storm drains.
For a period of thirty (30) days from the date of this publication, the United States Department of Justice will receive comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, and should either be emailed to
During the public comment period, the proposed Consent Decree may be examined on the following Department of Justice Web site,
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Health Standards for Diesel Particulate Matter Exposure (Underground Metal and Nonmetal Mines),” to the Office of Management and Budget (OMB) for review and approval for continued use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
Submit comments on or before September 27, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Telephone: 202-395-6929/Fax: 202-395-6881 (these are not toll-free numbers), email:
Michel Smyth by telephone at 202-693-4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
Diesel particulate matter (DPM) is a probable carcinogen that consists of tiny particles present in diesel engine exhaust that can readily penetrate into the deepest recesses of the lungs. Despite ventilation, the confined underground mine work environment may contribute to significant concentrations of particles produced by equipment used in the mine. Underground miners are exposed to higher concentrations of DPM than any other occupational group. As a result, they face a significantly greater risk than other workers do of developing such diseases as lung cancer, heart failure, serious allergic responses, and other cardiopulmonary problems.
The DPM regulation established a permissible exposure limit to total carbon, which is a surrogate for measuring a miner's exposure to DPM. These regulations include a number of other requirements for the protection of miners' health. The DPM regulations contain information collection requirements for underground metal and non-metal mine operators under
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 163rd open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held via teleconference on September 25, 2012.
The meeting will take place in C5521 Room 4, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Public access is available only in this room (i.e. not by telephone). The meeting will run from 10:00 a.m. to approximately 4:00 p.m. The purpose of the open meeting is to discuss reports/recommendations for the Secretary of Labor on the issues of (1) Managing Disability Risks in an Environment of Individual Responsibility; (2) Current Challenges and Best Practices Concerning Beneficiary Designations in Retirement and Life Insurance Plans; and (3) Examining Income Replacement During Retirement Years in a Defined Contribution Plan System. Descriptions of these topics are available on the Advisory Council page of the EBSA Web site at
Organizations or members of the public wishing to submit a written statement may do so by submitting 30 copies on or before September 18, 2012 to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N-5623, 200 Constitution Avenue NW., Washington, DC 20210. Statements also may be submitted as email attachments in text or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary or telephone (202) 693-8668. Oral presentations will be limited to ten minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations should contact the Executive Secretary by September 18, 2012 at the address indicated.
Employee Benefits Security Administration, U.S. Department of Labor.
Notice of proposed exemption.
This document contains a notice of pendency (the Notice) before the Department of Labor (the Department) of a proposed individual exemption from certain prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (the Act or ERISA). The transactions involve the Sharp HealthCare Health and Dental Plan (the Plan). The proposed exemption, if granted, would affect the Plan, its participants and beneficiaries, Sharp Healthcare (Sharp), and the Sharp Health Plan (the HMO).
Written comments and requests for a public hearing on the proposed exemption should be submitted to the Department within 33 days from the date of publication of this
Comments and requests for a hearing should state: (1) The name, address, and telephone number of the person making the comment or request, and (2) the nature of the person's interest in the proposed exemption and the manner in which the person would be adversely affected by the exemption, if granted. A request for a hearing must also state the issues to be addressed and include a general description of the evidence to be presented at the hearing. All written comments and requests for a public hearing concerning the proposed exemption should be sent to the Office of Exemption Determinations, Employee Benefits Security Administration, Room N-5700, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, Attention: Application No. L-11688. Interested persons are also invited to submit comments and/or hearing requests to EBSA via email or FAX. Any such comments or requests should be sent either by email to:
Mr. Warren Blinder, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, telephone (202) 693-8553. (This is not a toll-free number.)
This document contains a notice of proposed exemption that, if granted, would provide exemptive relief from sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of the Act, effective August 1, 2006, for the purchase of health insurance by the Plan from the HMO, a non-profit health maintenance organization wholly owned by the Plan's sponsor, Sharp, through a 100% non-profit membership interest.
Sharp is an integrated health care delivery system located in San Diego County. Sharp was created in 1946 as a non-profit association to raise funds to build a hospital and in 1955, based on a lead donation from Thomas E. Sharp, a hospital was built on 12.5 acres in Kearney Mesa, California. From that hospital, Sharp HealthCare has grown into a countywide system comprised of five hospitals, multiple clinics, and two pharmacies.
In 1992, Sharp established its own licensed HMO through a subsidiary corporation called “Sharp Health Plan.” The HMO is a 501(c)(4) corporation and Sharp is its sole member, with appointment authority over 100% of the HMO's Board of Director positions. The HMO offers a provider network that consists of 5 Sharp-affiliated hospitals, 5 Sharp-affiliated urgent care clinics, 11 Sharp-affiliated pharmacies, and 347 Sharp-affiliated (or Sharp-contracted) physicians in 4 different medical groups. Additionally, the HMO offers access to 7 non-Sharp affiliated hospitals, 25 non-Sharp affiliated urgent care clinics, approximately 360 non-Sharp affiliated pharmacies, and 570 non-Sharp affiliated physicians comprised of 290 physicians in 4 different medical groups, and 280 independent physicians. The HMO is licensed by the California Department of Managed Health Care and is offered to San Diego employers and individuals. The Applicant notes that the HMO and Sharp's facilities have a good reputation in San Diego County and have received numerous awards for quality over the years. Additionally, Sharp states that it has more licensed hospital beds than any other health care provider in San Diego County.
Sharp provides health benefits to its employees under the Plan. As of March 2012, the Plan had 10,993 participants and provided benefits to approximately 24,339 individuals. In 1993, Sharp began providing its employees' medical and vision benefits under the HMO. As the HMO is the only available option under the Plan, all participants were covered under the HMO. Each year, Sharp establishes a flat employee contribution rate for different levels of coverage (e.g., employee-only, employee plus-one, employee plus-family) and Sharp pays any remaining premiums based on the rates that it negotiates with the HMO. Between 2006 and 2010 Sharp paid approximately 85% of the premium cost of such coverage and employees paid the remaining 15% through pre-tax salary deferral contributions. Employee contributions are collected by Sharp, put into its general account and used as part of the premium payment to the HMO. The Applicant represents that all such plan assets are spent on premiums almost immediately upon being withheld from employees' paychecks. Employees also make co-payments directly to the actual providers of the medical care they receive, including Sharp, if the services have been provided in one of its facilities.
The HMO sets premiums for Sharp employees based on the experience of the Sharp employee population, as is the case with its other employer clients. The Applicant notes that, as a non-profit, the HMO only retains sufficient earnings to maintain its legally required reserves. In addition, the Applicant states that the HMO reduces its claims administration costs and is able to get better capitated rates from providers by pooling all of the covered lives under the HMO, rather than negotiating separate claims administration and capitated rate negotiations for just the Sharp employee population. According to the Applicant, this reduces the overall cost of health benefits under the Plan, ultimately reducing the cost Sharp employees pay for their coverage.
Sharp is designated as the plan administrator of the Sharp HealthCare Group Health and Welfare Plan.
Sharp's Vice President of Compensation and Benefits conducts an annual review to determine the reasonableness of total premiums paid by Sharp employees for coverage under the HMO. Sharp's Vice President of Compensation and Benefits also reviews the “employee share” rates to make sure that they are competitive when compared to the rates their peer employers are charging. The Applicant notes that the Vice President of Compensation and Benefits has used the services of outside vendors, such as Keenan & Associates and SDH Consultants to assist her in this comparison, and based on these surveys, Sharp has concluded that the premiums paid, as well as the employees' share of such premiums, for coverage under the HMO were reasonable.
The Applicant represents that for 18 years, Sharp has provided its employees with health insurance through the HMO, under the mistaken belief that this coverage was permissible under Prohibited Transaction Exemption (PTE) 79-41, 44 FR 46365 (August 7, 1979). The Applicant relates that, on April 5, 2011, the Los Angeles Regional Office of the Department of Labor (the Department) concluded an audit of the Plan and determined that the Plan's provision of coverage under the HMO did not meet the requirements of Section II(a)(1) of PTE 79-41, as described below.
PTE 79-41 provides that the restrictions of sections 406(a), 406(b)(1) and (2), and 407(a) of the Act and the taxes imposed by section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to the sale, in any taxable year, by an insurance company which is a party in interest or disqualified person with respect to an employee benefit plan, of life insurance, health insurance, and annuities if certain conditions are met.
Section II(a) of PTE 79-41 provides that the insurance company making the sale must:
(1) [Be] a party in interest or disqualified person with respect to the plan by reason of a stock or partnership (including a joint venture) affiliation with the employer establishing or maintaining the plan that is described in section 3(14)(E) or (G) of the Act* * *,
(2) [Be] licensed to sell insurance in at least one of the United States or in the District of Columbia,
(3) [Have] obtained a Certificate of Compliance from the insurance commissioner of its domiciliary state within the 18 months prior to the date when the transaction is entered into or when such certificates were last made available by the domiciliary state, if earlier, and
(4)(i) [Have] undergone a financial examination (within the meaning of the law of its domiciliary state) by the insurance commissioner of such state within 5 years prior to the end of the year preceding the year in which the sale occurred, or
(ii) [Have] undergone an examination by an independent certified public accountant for its last completed taxable year.
The Applicant states that Section II(a)(1) has not been complied with because Sharp does not have a stock or partnership interest in the HMO, but instead is the sole member of the HMO, and as such, has the power to appoint 100% of the HMO's Board of Directors. Nevertheless, the Applicant contends that Sharp's control of the HMO is no less complete than it would be if Sharp's ownership interest was denominated in the form of stock or a partnership interest.
The Applicant maintains that the general premise undergirding PTE 79-41 is no less applicable in the case of a non-profit health care system whose ownership is through membership rather than a shareholder interest. In this regard, the Applicant states that health systems that maintain their own HMO or insurance policies invariably use those policies to provide health insurance benefits to their own employees. Thus, according to the Applicant, it would be “contrary to ordinary business practices, and unnecessarily restrictive, to require” an employer who is in the business of selling health insurance to purchase such health insurance for its employees from a competitor.
Furthermore, Sharp contends that its control of the HMO via a non-profit membership interest presents a non-substantive, technical violation of the class exemption that has no bearing on the relief afforded to the Plan and its parties in interest, or the protection of the interests of the Plan and its participants and beneficiaries. The Applicant states that the relationship between Sharp and the HMO reflects the “qualities” behind PTE 79-41's affiliation requirement. In this regard, the Applicant observes that Sharp and the HMO are part of a closely connected system that have a common mission and integrated operations, and that Sharp could not find an independent carrier that would be as responsive to employer and participant needs as the HMO. According to the Applicant, the fact that Sharp and the HMO are non-profit corporations and do not have stock or partnership interests, and, therefore, exercise control through Sharp's Board of Directors' appointment authority, does not in any way diminish Sharp's control over and comprehensive integration with the HMO. Thus, the Applicant submits that Sharp's failure to meet the affiliation condition of PTE 79-41, as described herein, is merely technical in nature and not meaningful to the Department's granting of relief under PTE 79-41.
The Applicant is therefore requesting a retroactive exemption from sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1) and 406(b)(2) of the Act for the Plan's purchase of health care coverage from the HMO, which Sharp wholly-owns through a non-profit membership interest, effective August 1, 2006 through and until the date of publication of a final grant of exemption in the
After considering the Applicant's request, the Department has determined to propose an individual prohibited transaction exemption. The proposed exemption has been requested in an application filed by Sharp pursuant to section 408(a) of ERISA and in accordance with the procedures set forth in 29 CFR 2570, Subpart B (55 FR 32836, August 10, 1990).
The Applicant urges the Department to propose exemptive relief, because, according to the Applicant, all of the conditions of relief required under PTE 79-41 have been satisfied with respect to the Sharp arrangement described herein, except the condition in Section II(a)(1), requiring that Sharp control the HMO via a stock or partnership ownership interest. In this regard, the Applicant represents that the HMO: Is licensed as an HMO in California by the Department of Managed Healthcare; has been certified by the California Department of Managed Healthcare as being in compliance with the requirements for a licensed HMO within the last 18 months; and has undergone a financial examination by the California Department of Managed Healthcare within the last five years and is audited by an independent certified public accountant each year, including its last completed taxable year. Therefore, the Applicant maintains that Sharp has satisfied the conditions set forth in Sections II(a)(2), (3), and (4) of PTE 79-41. The Applicant also represents that the amount the Plan pays to Sharp for HMO coverage is reasonable and does not exceed the amount that would be paid for similar services in an arm's length transaction between unrelated parties, thereby satisfying Section II(b) of PTE 79-41. The Applicant also represents that no commissions are paid by the Plan for the insurance coverage purchased from the HMO, thereby satisfying Section II(c) of PTE 79-41. Finally, the Applicant states that the total HMO premiums collected for participants in the Plan (including employee and employer payments) have always, during the period covered by this application, been less than 50% of total premiums collected by the HMO. Therefore, the Applicant maintains that the condition contained in Section II(d) of PTE 79-41 is satisfied.
According to the Applicant, the HMO, as a licensed HMO in California, employs an underwriter and contracts with an actuary to calculate the appropriate premiums that it charges to employers who purchase group HMO contracts from the HMO. According to the Applicant, this analysis involves a study of industry trends and also the particular demographics of the employer's workforce and, for a continuing employer, such as Sharp, a review of the historic experience that the HMO has had with the employer's population. Based on this underwriting analysis, premiums are set for a contract year.
In addition, the Applicant states that it also conducts its own survey of premiums that are being paid for HMO coverage by other San Diego area hospitals, using the services of third-party benefit consultants to conduct these surveys.
The Applicant notes that Sharp will continue with these efforts, going forward, and will commit to hiring an independent third-party consultant each year to issue a formal report. According to the Applicant, the consultant will determine whether the amount employees and/or their dependents pay for coverage is reasonable and does not exceed the amount that would have been paid for similar services in an arm's length transaction between unrelated parties. This amount will include the cost of co-payments and other out-of-pocket expenses for such coverage borne by participants and/or their dependents, and copies of the certification will be distributed to Plan participants along with summaries of health care costs for similar, competing health care providers.
The Applicant states that if the proposed exemption is granted, the Board of Directors of Sharp will appoint a committee (the Plan Committee) consisting of the Senior Vice President and General Counsel, the Senior Vice President and Chief Financial Officer, and the Vice President, Compensation and Benefits, and such other representatives as the Board may deem appropriate, which will annually ascertain and certify in writing that the above requirements of this proposed exemption, if granted, continue to be met.
The Applicant states that the covered transactions are in the interest of the Plan and its participants and beneficiaries. The Applicant maintains that the covered transactions allow the Plan to provide quality medical coverage to its participants at a lower price and in a manner that harmonizes with the business practices of employers who are in the insurance and health care industry. Sharp maintains that participants in the Plan pay for less than half of the Plan's cost for coverage under the HMO and by electing coverage under the HMO, participants have access to a wide range of high quality Sharp and non-Sharp affiliated health care providers.
The Applicant represents that the savings garnered from the HMO's efficiencies of scale, and the lack of need for commissions, redounds to the benefit of Plan participants. In this regard, the Applicant explains that there
Moreover, the Applicant represents that an exemption, if granted, would be administratively feasible because the covered transactions are standard for employers who are in the insurance and health care industry. The Applicant also observes that, because the HMO is a fully licensed HMO carrier whose claims processing activities are subject to regulation and periodic review by the California Department of Managed Health Care, no third party audit of its claims processing is necessary.
Notice of the proposed exemption will be provided to all interested persons in the manner agreed upon by the Applicant and the Department within 3 days of the date of publication in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of ERISA does not relieve a fiduciary or other party in interest from certain other provisions of ERISA, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of ERISA, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(b) of ERISA;
(2) Before an exemption may be granted under section 408(a) of ERISA, the Department must find that the exemption is administratively feasible, in the interests of the plan and of its participants and beneficiaries, and protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in derogation of, any other provisions of ERISA, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition that the material facts and representations contained in the application are true and complete, and that the application accurately describes all material terms of the transaction which is the subject of the proposed exemption.
Based on the facts and representations set forth in the application, the Department is considering granting the requested exemption under the authority of section 408(a) of the Act and in accordance with the procedures set forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990), as follows:
A. If the proposed exemption is granted, the restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of the Act shall not apply, effective August 1, 2006 through and until the date of publication in the
B. If the proposed exemption is granted, the restrictions of sections 406(a)(1)(A), 406(a)(1)(D), 406(b)(1), and 406(b)(2) of the Act shall not apply, effective as of the date of publication in the
(a) Sharp is the sole member of the HMO, and more than 50% of the appointment power for the HMO's Board of Directors is held by Sharp.
(b) Sharp is licensed to sell HMO coverage in the State of California.
(c) The HMO is certified by the California Department of Managed Health Care as being in compliance with the requirements for a licensed HMO within the last 18 months.
(d) The HMO has undergone a financial examination by the California Department of Managed Health Care within the past 5 years and will continue to undergo such financial examinations at least once every five years.
(e) The HMO has been, and will continue to be, examined by an independent certified public accountant annually.
(f) The amount the Plan pays to Sharp for HMO coverage is reasonable and does not exceed the amount the Plan would have paid for similar services in an arm's length transaction between unrelated parties.
(g) All HMO-offered health care providers meet all applicable licensure requirements and certifications.
(h) The HMO offers a sufficient number of non-Sharp affiliated health care providers to effectively allow Plan participants the opportunity to receive health care services from either Sharp or non-Sharp affiliated health care providers.
(i) No commissions are paid by the Plan with respect to the sale of HMO coverage.
(j)(i) With respect to the relief provided in section I. A., for each taxable year of the HMO, the gross premiums received in that taxable year by the HMO from the Plan did not exceed 50% of the gross premiums received by the HMO for all HMO coverage issued in that taxable year; or (ii) with respect to the relief provided in section I. B., for each taxable year of the HMO, the gross premiums received in that taxable year by the HMO from the Plan will not exceed 50% of the gross premiums received by the HMO for all HMO coverage issued in that taxable year.
(k) Sharp maintains or causes to be maintained for a period of six years from the date of any covered transaction hereunder such records as are necessary to enable the persons described in paragraph (l)(i) below to determine whether the conditions of this proposed exemption, if granted, have been met, provided that (i) a separate prohibited transaction will not be considered to
(l)(i) Except as provided below in paragraph (l)(ii), and notwithstanding any provisions of subsections (a)(2) and (b) of section 504 of the Act, the records referred to above in paragraph (k) are unconditionally available at their customary location for examination during normal business hours by:
(A) Any duly authorized employee or representative of the Department,
(B) Any duly authorized representative of the California Department of Managed Health Care or any State or Federal governmental body responsible for regulatory oversight of Sharp or the HMO, and
(C) Any fiduciary of the Plan or the Plan's authorized representative; and
(ii) None of the persons described above in paragraph (l)(i)(C) shall be authorized to examine trade secrets of Sharp, or commercial or financial information which is privileged or confidential, and should Sharp refuse to disclose information on the basis that such information is exempt from disclosure, Sharp shall, by the close of the thirtieth (30th) day following the request, provide a written notice advising that person of the reasons for the refusal and that the Department may request such information.
(a) Sharp retains annually the services of an independent third-party consultant to determine whether the amount employees and/or their dependents pay for coverage is reasonable and does not exceed the amount that would be paid for similar services in an arm's length transaction between unrelated parties, which amount includes the cost of co-payments and other out-of-pocket expenses for such coverage borne by participants and/or their dependents, and written copies of such determination are distributed to Plan participants along with summaries of health care costs for similar, competing health care providers.
(b) The Board of Directors of Sharp appoints a committee (the Plan Committee) consisting of the Senior Vice President and General Counsel, the Senior Vice President and Chief Financial Officer, the Vice President, Compensation and Benefits, and such other representatives as the Board of Directors may deem appropriate. The Plan Committee will annually ascertain and certify in writing that the above requirements of this proposed exemption, if granted, continue to be met.
The Legal Services Corporation's Board of Directors will meet telephonically on August 31, 2012. The meeting will commence at 11 a.m., Eastern Daylight Time, and will continue until the conclusion of the Board's agenda.
F. William McCalpin Conference Room, Legal Services Corporation Headquarters, 3333 K Street NW., Washington DC 20007.
Members of the public who are unable to attend in person but wish to listen to the public proceedings may do so by following the telephone call-in directions provided below but are asked to keep their telephones muted to eliminate background noises. To avoid disrupting the meeting, please refrain from placing the call on hold. From time to time, the presiding Chair may solicit comments from the public.
• Call toll-free number: 1-866-451-4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please immediately “MUTE” your telephone.
Open, except that, upon a vote of the Board of Directors, a portion of the meeting may be closed to the public to discuss a candidate for the position of Vice President for Grants Management. A verbatim written transcript will be made of the closed session of the Board of Directors meeting. The transcript of any portion of the closed session falling within the relevant provisions of the Government in the Sunshine Act, 5 U.S.C. 552b(c)(6), and the corresponding provision of the Legal Service's Corporation's implementing regulations, 45 CFR 1622.5(e), will not be available for public inspection. A copy of the General Counsel's Certification that in his opinion the closing is authorized by law will be available upon request.
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295-1500. Questions may be sent by electronic mail to
Non-confidential meeting materials will be made available in electronic format at least 24 hours in advance of the meeting on the LSC Web site, at
LSC complies with the American's with Disabilities Act and Section 504 of the 1973 Rehabilitation Act. Upon request, meeting notices and materials will be made available in alternative formats to accommodate individuals with disabilities. Individuals who need other accommodations due to disability in order to attend the meeting in person or telephonically should contact Katherine Ward, at (202) 295-1500 or
National Aeronautics and Space Administration.
Notice of meeting.
This Committee reports to the NAC. The meeting will be held for the purpose of soliciting, from the scientific community and other persons, scientific and technical information relevant to program planning.
Tuesday, September 18, 2012, 11:45 a.m.-5:30 p.m.; Local Time.
NASA Ames Research Center (ARC), The Showroom, Building M-3, NASA Ames Conference Center, 500 Severyns Road, NASA Research Park, Moffett Field, CA 94035-1000.
Mr. Thomas W. Rathjen, Human Exploration and Operations Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-0552, fax (202) 358-2885, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number (888) 790-5969 or toll number (517) 224-3265, pass code 7234039#, to participate in this meeting by telephone. The WebEx link is
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants. Attendees will be required to comply with NASA security procedures, including the presentation of a valid picture ID. Visitors must show a valid State or Federal issued picture ID, green card, or passport to enter into the NASA Research Park, and must state they are attending the NASA Advisory Council Commercial Space Committee session in The Showroom, Building M-3. All U.S. citizens and green card holders desiring to attend must provide their full name, company affiliation (if applicable), and citizenship to Thomas Rathjen via email at
Quality Inspection & Testing, Inc. (QIT), is the holder of a general license issued by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to § 150.20 of Title 10 of the
On October 27, 2010, the NRC conducted an inspection at a temporary job site located near Rock Springs, Wyoming. As a result of this inspection, QIT conducted an internal investigation and reported the results to the NRC in a letter dated January 27, 2011 (ML110940552). In response to QIT's investigation results, the NRC issued a Confirmatory Action Letter (CAL-4-11-001) on February 11, 2011 (ML110420261). QIT responded to the Confirmatory Action Letter in a letter dated February 15, 2011 (ML110530442). In addition, the NRC Office of Investigations (OI), Region IV, conducted an investigation (Case 4-2011-031).
By letter dated June 5, 2012, the NRC transmitted the results of the inspection and investigation in NRC Inspection Report 150-00017/2010-004 and Investigation Report 4-2011-031 [Reference redacted, not publicly available]. Based on the results of the inspection and investigation, the NRC determined that four apparent violations of NRC requirements had occurred. The apparent violations involved failure to: (1) Control and maintain constant surveillance of licensed material that is not in storage as required by 10 CFR 20.1802; (2) comply with security-related requirements as discussed in the Appendix to this Order; (3) wear, on the trunk of the body, a direct reading dosimeter, operating alarm ratemeter and a personal dosimeter while conducting radiographic operations in accordance with the requirements of 10 CFR 34.47(a); and (4) maintain copies of the specified records and documents required at a temporary jobsite as required by 10 CFR 34.89(b). Furthermore, the NRC is concerned that willfulness may be associated with the first three apparent violations. Finally, the inspection and investigation evidence also provided the basis for NRC identified apparent security violations of NRC requirements. The violations are described in the Appendix to this Order. (The Appendix includes Security-Related information; therefore, it is not publicly available.)
In the June 5, 2012, letter, the NRC informed QIT that the NRC was considering escalated enforcement action for the apparent violations. The NRC offered QIT the opportunity to request a predecisional enforcement conference (PEC) or request alternative dispute resolution (ADR) with the NRC in an attempt to resolve issues associated with this matter. In response, on June 13, 2012, QIT requested ADR to resolve this matter with the NRC.
On June 27, 2012, the NRC and QIT representatives met in an ADR session with a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. ADR is a process in which a neutral mediator with no decision-making authority assists the parties in reaching an agreement on resolving any differences regarding the dispute. This Confirmatory Order is issued pursuant to the agreement reached during the ADR process.
In response to the NRC's offer, QIT requested use of the NRC ADR process to resolve differences it had with the NRC. During that ADR session, a preliminary settlement agreement was reached. The elements of the agreement consisted of the following.
The NRC recognizes the corrective actions associated with the apparent violations that QIT has already implemented, which include:
• Conducting an internal investigation into the issues identified by the NRC, and documenting the results of that investigation in a letter to the NRC dated January 27, 2011 (ML110940552).
• Appointing a full-time radiation safety officer (RSO) for QIT's Northwest Region on December 3, 2010, and giving the RSO full authority to enforce the QIT radiation safety program for personnel in the region.
• Holding a meeting with all radiography personnel promptly after the NRC inspection to communicate the inspection findings.
• Amending radiography policies and procedures to require the RSO to ensure all vehicles used in radiographic operations are equipped with the required documents and equipment prior to use.
• Retraining and testing all radiography personnel on QIT's Operating and Emergency Procedures, with emphasis on the duties and responsibilities of radiographers, dosimetry requirements, and a security-related issue discussed in the Appendix to this Confirmatory Order.
• Conducting weekly field audits to ensure employees follow the required company, state, and federal requirements.
• Granting “stop-work” authority to all radiography personnel who identify that radiography is being conducted in violation of the requirements.
QIT also agreed to take the following actions to address the apparent violations:
A. Within 30 days of the date of the Confirmatory Order, QIT will issue a company policy statement to its employees regarding how unacceptable deliberate violations are, the importance of maintaining security over licensed material, and the ethics of complying with regulatory requirements. A copy of the policy statement will be provided to the NRC.
B. Within 30 days of the date of the Confirmatory Order, the president of QIT will issue a personal letter to employees regarding his expectations in identifying and communicating concerns to QIT management, as well as overall compliance with NRC regulations.
QIT will enhance its training program for employees conducting radiographic operations. The goal of the changes is to conduct licensed operations safely and to deter future deliberate violations by ensuring that employees (including licensee managers) understand the importance the NRC places on violations associated with deliberate misconduct and careless disregard. The program will consist of training for all current and newly hired employees performing licensed activities and provide for annual refresher training. QIT will complete the following activities in support of the training program:
(a) Within 60 days of the date of the Confirmatory Order, QIT will contract with an external contractor to assist in the development of a QIT training program regarding the NRC Enforcement process. The external contractor will work with a QIT management representative. This QIT training program will address, at a minimum, the types of willfulness (careless disregard and deliberate misconduct), the potential criminal sanctions that the Department of Justice may take, and the potential enforcement sanctions that the NRC may take against employees who engage in deliberate misconduct. The QIT management representative, who participated in the development of the program, will retain responsibility for providing training based on the program to all QIT employees who engage in NRC-licensed activities.
(b) At least 15 days before the time that QIT intends to execute the contract with the external contractor, QIT will submit for NRC review and approval, the resume of the contractor proposed to develop and perform the training described in Item C.1.a. above.
(c) At least 15 days prior to the start of training, but no later than 30 days after executing the contract with the external training contractor, QIT will submit for NRC review and approval an outline of the topics to be covered during the training session. The training will include the topics identified in Section C.3. of the Confirmatory Order.
(d) The training for managers will be completed within 60 days of the NRC's approval of the outline of the course topics. The training for managers will be provided by the external contractor. The training for current employees will be completed within 120 days of the NRC's approval of the outline of the course topics.
(e) QIT will assess the effectiveness of the training through written testing. Any employee that does not pass the test will receive remedial training and be retested. Within 30 days of completing the training for all current employees, QIT will provide to the NRC: (1) A letter stating that the training as specified is complete and (2) the results of the employee testing process.
Within 120 days of the date of the Confirmatory Order, QIT will submit for NRC approval, the training program described in sections C.1 and C.3 along with associated procedure(s) that describe the initial training which must be provided to new employees who will be conducting NRC licensed activities and the annual refresher training that will be conducted for those employees who are performing NRC licensed activities. The submittal to the NRC will include: (1) An outline of the topics to be covered during the initial training and the refresher training sessions, (2) any procedure(s) that provide guidance on how the training program is conducted, and (3) details of the testing that will be conducted to evaluate the effectiveness of the training.
The contractor identified in C.1 will also make enhancements to QIT's established training program. The training procedures for the current employees, new employees and annual refresher training will be modified to include the following elements:
(a) A discussion of the NRC's policy statement on safety culture [76 FR 34773] and QIT management's support of that policy. Employees will be provided a copy of NUREG/BR-0500, “Safety Culture Policy Statement.”
(b) Elements of willfulness discussed in Chapter 6 of the NRC Enforcement Manual, including examples of enforcement actions that the NRC has taken against individuals (publicly available on the NRC's Web site).
(c) Potential criminal sanctions that the Department of Justice may take against individuals for deliberate misconduct.
(d) Requirements of 10 CFR 30.10, “Deliberate Misconduct”; and 10 CFR 30.7 “Employee Protection.”
(e) Instruction on the importance of understanding and following QIT's internal procedures and the regulatory requirements associated with radiographic operations.
(f) Discussion on when to suspend work activities and to verify whether specific circumstances call for implementing corrective actions and resuming work activities or stopping work activities in order to protect the health and safety of the workers and the public.
(g) The importance of having the required documents (Operating & Emergency procedures, shipping papers, copies of regulations, etc.) with the radiography equipment when working at temporary jobsites.
4. Recordkeeping Requirements. QIT will maintain training records, including attendees and the test results for 5 years. The records will be available for NRC review when requested.
Within 90 days of the issuance date of the Confirmatory Order, QIT will develop and submit to NRC for review and approval:
1. A procedure that provides details on how QIT management and the corporate RSO will provide oversight of the Regional RSO(s).
2. A security-related procedure that is discussed in the Appendix to the Order.
3. A procedure for various ways for employees to report concerns, including implementation of an open door policy.
4. A security-related provision that is discussed in the Appendix to the Order.
5. Audit records must be maintained for five years and include the following information: date of audit, name of person conducting the audit, name of persons contacted by auditor, audit findings, corrective actions and follow-up (if any).
E. Within 30 days after QIT receives the NRC reviewed and approved procedures specified in sections C and D of the Order, QIT shall implement and comply with the approved procedures when performing work under NRC jurisdiction. The approved procedures and any subsequent procedural revisions will remain binding upon QIT when performing work under NRC jurisdiction for a period of 10 years from the date of the Confirmatory Order.
F. Within 180 days of the date of the Confirmatory Order, the president of QIT must submit a paper for presentation at an NDT professional society meeting (national or local chapter), such as the Non-Destructive Testing Management Association (NDTMA) relating the actions that resulted in escalated enforcement and the corrective measures that QIT has taken or plans to take to prevent recurrence.
G. Within 30 days of the date of the Confirmatory Order, QIT must pay a civil penalty of $3,500. Payment must be made in accordance with payment methods described in NUREG/BR-0254, “Payment Methods.” QIT will submit a statement indicating when and by what method payment was made to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.
On August 8, 2012, the Licensee consented to issuing this Order with the commitments, as described in Section V below. Quality Inspection and Testing, Inc., further agreed that this Order is to be effective upon issuance and that it has waived its right to a hearing.
Since Quality Inspection and Testing, Inc. (QIT), has agreed to take additional actions to address NRC concerns, as set forth in Section III above, the NRC has concluded that its concerns can be resolved through issuance of this Confirmatory Order.
I find that the QIT commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that the QIT commitments be confirmed by this Order. Based on the above and QIT's consent, this Confirmatory Order is immediately effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR parts 20, 30, and 34,
A. Within 30 days of the date of the Confirmatory Order, QIT will issue a company policy statement to its employees regarding how unacceptable deliberate violations are, the importance of maintaining security over licensed material, and the ethics of complying with regulatory requirements. A copy of the policy statement will be provided to the NRC.
B. Within 30 days of the date of the Confirmatory Order, the president of QIT will issue a personal letter to employees regarding his expectations in identifying and communicating concerns to management, as well as overall compliance with NRC regulations.
C. QIT will enhance its training program for employees conducting radiographic operations. The goal of the changes is to conduct licensed operations safely and deter future deliberate violations by ensuring that employees (including licensee managers) understand the importance the NRC places on violations associated with deliberate misconduct and careless disregard. The program will consist of training for all current and newly hired employees performing licensed activities and provide for annual refresher training. QIT will complete the following activities in support of the training program:
(a) Within 60 days of the date of the Confirmatory Order, QIT will contract with an external contractor to assist in the development of a QIT training program regarding the NRC Enforcement process. The external contractor will work with a QIT management representative. This QIT training program will address all of the elements in condition C.3 below and, at a minimum, the types of willful violations, the types of willfulness (careless disregard and deliberate misconduct), the potential criminal sanctions that the Department of Justice may take, and the potential enforcement sanctions that the NRC may take against employees who engage in deliberate misconduct. As discussed in Item C.1.d, the contractor will provide training to all QIT managers. The QIT management representative, who participated in the development of the program, will retain responsibility for providing training based on the program to all QIT employees who engage in NRC-licensed activities.
(b) At least 15 days before the time that QIT intends to execute the contract
(c) At least 15 days prior to the start of training, but no later than 30 days after executing the contract with the external training contractor, QIT will submit for NRC review and approval an outline of the topics to be covered during the training session. The training will include the topics identified in Section C.3. of the Confirmatory Order.
(d) The training for managers will be completed within 60 days of the NRC's approval of the outline of the course topics. The training for managers will be provided by the external contractor. The training for current employees will be completed within 120 days of the NRC's approval of the outline of the course topics.
(e) QIT will assess the effectiveness of the training through written testing. Any employee that does not pass the test will receive remedial training and be retested. Within 30 days of completing the training for all current employees, QIT will provide to the NRC: (1) A letter stating that the training as specified is complete and (2) the results of the employee testing process (such as total number of employees who took the training and whether any did not pass even after remedial training).
Within 120 days of the date of the Confirmatory Order, QIT will submit for NRC approval, the training program described in sections C.1 and C.3 along with associated procedure(s) that describe the initial training which must be provided to new employees who will be conducting NRC licensed activities and the annual refresher training that will be conducted for those employees who are performing NRC licensed activities. The submittal to the NRC will include: (1) An outline of the topics to be covered during the initial training and the refresher training sessions, (2) any procedure(s) that provide guidance on how the training program is conducted, and (3) details of the testing that will be conducted to evaluate the effectiveness of the training.
3. The contractor identified in section C.1 will also make enhancements to QIT's established training program. The training procedures for the current employees, new employees and annual refresher training will be modified to include the following elements:
a. A discussion of the NRC's policy statement of safety culture [76 FR 34773] and QIT management's support of that policy. Employees will be provided a copy of NUREG/BR-500, “Safety Culture Policy Statement.”
b. Elements of willfulness discussed in Chapter 6 of the NRC Enforcement Manual including examples of enforcement actions that the NRC has taken against individuals (publically available on the NRC's Web site).
c. Potential criminal sanctions that the Department of Justice may take against individuals for deliberate misconduct.
d. Requirements of 10 CFR 30.10, “Deliberate misconduct”; and 10 CFR 30.7, “Employee protection.”
e. Instruction on the importance of understanding and following QIT's internal procedures and the regulatory requirements associated with radiographic operations.
f. Discussion on when to suspend work activities and to verify whether specific circumstances call for implementing corrective actions and resuming work activities or stopping work activities in order to protect the health and safety of the workers and the public.
g. The importance of having the required documents (Operating & Emergency procedures, shipping papers, copies of regulations, etc.) with the radiography equipment when working at temporary jobsites.
4. Recordkeeping Requirements. QIT will maintain training records, including attendees and the test results for 5 years. The records will be available for NRC review when requested.
Within 90 days of the issuance date of the Confirmatory Order, QIT will develop and submit to the NRC for review and approval procedures that address the following items:
1. A procedure that provided details on how QIT management and the corporate RSO will provide oversight of the Regional RSO(s).
2. This provision involves field audits of security requirements and contains security-related information which is described in the security-related Appendix to this Order (not publicly available).
3. A procedure for various ways for employees to report concerns, including implementation of an open door policy.
4. This provision discusses how field audits of security requirements are to be conducted and contains security-related information which is described in the security-related Appendix to this Order (not publicly available).
5. A procedure that requires that audit records must be maintained for 5 years and include the following information: date of audit, name of person conducting the audit, name of persons contacted by the auditor, audit findings, corrective actions and follow-up (if any).
E. Within 30 days after QIT receives the NRC reviewed and approved procedures specified in sections C and D, QIT shall implement and comply with the approved procedures when performing work under NRC jurisdiction. The approved procedures and any subsequent procedural revisions will remain binding upon QIT when performing work under NRC jurisdiction for a period of 10 years from the date of the confirmatory order.
F. Within 180 days of the date of the Confirmatory Order, the president of QIT must submit a paper for presentation at an NDT professional society meeting (national or local chapter), such as the Non-Destructive Testing Management Association (NDTMA) relating the actions that resulted in escalated enforcement and the corrective measures that QIT has taken or plan to take to prevent recurrence. The president of QIT will provide NRC with a copy of the paper at the same time he submits it to an NDT professional society, by mailing the copy to: US NRC Region IV, ATTN: Director, Division of Nuclear Material Safety, 1600 Lamar Blvd., Arlington, Texas 76011.
G. Within 30 days of the date of the Confirmatory Order, QIT must pay a civil penalty of $3,500. Payment must be made in accordance with payment methods described in NUREG/BR-0254, “Payment Methods.” QIT will submit a statement indicating when and by what method payment was made to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738.
H. Unless otherwise specified, all documents required to be submitted to the NRC will be sent to: US NRC Region IV, ATTN: Director, Division of Nuclear Material Safety, 1600 Lamar Blvd., Arlington, Texas 76011.
The Regional Administrator, Region IV, may, in writing, relax or rescind any of the above conditions upon demonstration by Quality Inspection and Testing, Inc., of good cause.
Any person adversely affected by this Confirmatory Order, other than Quality Inspection and Testing, Inc. (QIT), may request a hearing within 20 days of its publication in the
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC's public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852-2738, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
If a person (other than Quality Inspection and Testing, Inc.) requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 20 days from the date this Confirmatory Order is published in the
A request for hearing shall not stay the immediate effectiveness of this order.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Weeks of August 27, September 3, 10, 17, 24, October 1, 2012.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of August 27, 2012.
There are no meetings scheduled for the week of September 3, 2012.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of September 17, 2012.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 1, 2012.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—301-415-1292. Contact person for more information: Rochelle Bavol, 301-415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Bill Dosch, Chief, Work Life and Benefits Branch, at 301-415-6200, TDD: 301-415-2100, or by email at
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
Pursuant to 10 CFR 110.70 (b) “Public Notice of Receipt of an Application,” please take notice that the Nuclear Regulatory Commission (NRC) has received the following request to amend an import license. Copies of the request are available electronically through ADAMS and can be accessed through the Public Electronic Reading Room (PERR) link
A request for a hearing or petition for leave to intervene may be filed within thirty days after publication of this notice in the
A request for a hearing or petition for leave to intervene may be filed with the NRC electronically in accordance with NRC's E-Filing rule promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007). Information about filing electronically is available on the NRC's public Web site at
In addition to a request for hearing or petition for leave to intervene, written comments, in accordance with 10 CFR 110.81, should be submitted within thirty (30) days after publication of this notice in the
The information concerning this export license application follows.
For the Nuclear Regulatory Commission.
Pursuant to 10 CFR 110.70 (b) “Public Notice of Receipt of an Application,” please take notice that the Nuclear Regulatory Commission (NRC) has received the following request to amend an export license. Copies of the request are available electronically through ADAMS and can be accessed through the Public Electronic Reading Room (PERR) link
A request for a hearing or petition for leave to intervene may be filed within thirty days after publication of this notice in the
A request for a hearing or petition for leave to intervene may be filed with the NRC electronically in accordance with NRC's E-Filing rule promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007). Information about filing electronically is available on the NRC's public Web site at
In addition to a request for hearing or petition for leave to intervene, written comments, in accordance with 10 CFR 110.81, should be submitted within thirty (30) days after publication of this notice in the
The information concerning this export license application follows.
For the Nuclear Regulatory Commission.
Thursday, September 13, 2012, at 10:00 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW., in the Benjamin Franklin Room.
Closed.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1000. Telephone (202) 268-4800.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 206(4)-2 (17 CFR 275.206(4)-2) under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1
The rule exempts advisers from the rule with respect to clients that are registered investment companies. Advisers to limited
Advisory clients use this information to confirm proper handling of their accounts. The Commission's staff uses the information obtained through this collection in its enforcement, regulatory and examination programs. Without the information collected under the rule, the Commission would be less efficient and effective in its programs and clients would not have information valuable for monitoring an adviser's handling of their accounts.
The respondents to this information collection are investment advisers registered with the Commission and have custody of clients' funds or securities. We estimate that 4,763 advisers would be subject to the information collection burden under rule 206(4)-2. The number of responses under rule 206(4)-2 will vary considerably depending on the number of clients for which an adviser has custody of funds or securities, and the number of investors in pooled investment vehicles that the adviser manages. It is estimated that the average number of responses annually for each respondent would be 6,830, and an average time of 0.01593hour per response. The annual aggregate burden for all respondents to the requirements of rule 206(4)-2 is estimated to be 518,275 hours.
The estimated average burden hours are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the cost of Commission rules and forms.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-11 requires all registered transfer agents to report to issuers and the appropriate regulatory agency in the event that aged record differences exceed certain dollar value thresholds. An aged record difference occurs when an issuer's records do not agree with those of security holders as indicated, for instance, on certificates presented to the transfer agent for purchase, redemption or transfer. In addition, the rule requires transfer agents to report to the appropriate regulatory agency in the event of a failure to post certificate detail to the master security holder file within five business days of the time required by Rule 17Ad-10 (17 CFR 240.10). Also, transfer agents must maintain a copy of each report prepared under Rule 17Ad-11 for a period of three years following the date of the report. These recordkeeping requirements assist the Commission and other regulatory agencies with monitoring transfer agents and ensuring compliance with the rule.
Because the information required by Rule 17Ad-11 is already available to transfer agents, any collection burden for small transfer agents is minimal. Based on a review of the number of Rule 17Ad-11 reports the Commission, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation received since 2009, the Commission estimates that 10 respondents will file a total of approximately 12 reports annually. The Commission staff estimates that, on the average, each report requires approximately one-half hour to prepare. Therefore, the Commission staff estimates that the total annual hourly burden to the entire transfer agent industry is approximately six hours (30 minutes multiplied by 12 reports). Assuming an average hourly rate of a transfer agent staff employee of $25, the average total internal cost of the report is $12.50. The total annual internal cost of compliance for the approximate 10 respondents is approximately $150.00 (12 reports × $12.50).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312 or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 23c-3 (17 CFR 270.23c-3) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
The requirement that the fund send a notification to shareholders of each offer is intended to ensure that a fund provides material information to shareholders about the terms of each offer. The requirement that copies be sent to the Commission is intended to enable the Commission to monitor the fund's compliance with the notification requirement. The requirement that the shareholder notification be attached to Form N-23c-3 is intended to ensure that the fund provides basic information necessary for the Commission to process the notification and to monitor the fund's use of repurchase offers. The requirement that the fund describe its current policy on repurchase offers and the results of recent offers in the annual shareholder report is intended to provide shareholders current information about the fund's repurchase policies and its recent experience. The requirement that the board approve and review written procedures designed to maintain portfolio liquidity is intended to ensure that the fund has enough cash or liquid securities to meet its repurchase obligations, and that written procedures are available for review by shareholders and examination by the Commission. The requirement that the fund file advertisements and sales literature as if it were an open-end fund is intended to facilitate the review of these materials by the Commission or FINRA to prevent incomplete, inaccurate, or misleading disclosure about the special characteristics of a closed-end fund that makes periodic repurchase offers.
Based on staff experience, the Commission staff estimates that 20 funds make use of rule 23c-3 annually, including two funds that are relying upon rule 23c-3 for the first time. The Commission staff estimates that on average a fund spends 89 hours annually in complying with the requirements of the rule and Form N-23c-3, with funds relying upon rule 23c-3 for the first time incurring an additional one-time burden of 28 hours. The Commission therefore estimates the total annual burden of the rule's and form's paperwork requirements to be 1,836 hours. In addition to the burden hours, the Commission estimates that the average yearly cost to each fund that relies on rule 23c-3 to print and mail repurchase offers to shareholders is approximately $29,966.50. The Commission estimates total annual cost is therefore approximately $599,330.
Estimates of average burden hours and costs are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of the rule and form is mandatory only for those funds that rely on the rule in order to repurchase shares of the fund. The information provided to the Commission on Form N-23c-3 will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the burdens of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burdens of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 31(a)(1) of the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a-30(a)(1)) requires registered investment companies (“funds”) and certain underwriters, broker-dealers, investment advisers, and depositors to maintain and preserve records as prescribed by Commission rules. Rule 31a-1 under the Act (17 CFR 270.31a-1) specifies the books and records that each of these entities must maintain. Rule 31a-2 under the Act (17 CFR 270.31a-2), which was adopted on April 17, 1944, specifies the time periods that entities must retain certain books and records, including those required to be maintained under rule 31a-1.
Rule 31a-2 requires the following:
1. Every fund must preserve permanently, and in an easily accessible place for the first two years, all books and records required under rule 31a-1(b)(1)-(4).
2. Every fund must preserve for at least six years, and in an easily accessible place for the first two years:
a. All books and records required under rule 31a-1(b)(5)-(12);
b. All vouchers, memoranda, correspondence, checkbooks, bank statements, canceled checks, cash reconciliations, canceled stock certificates, and all schedules evidencing and supporting each computation of net asset value of fund shares, and other documents required to be maintained by rule 31a-1(a) and not enumerated in rule 31a-1(b);
c. Any advertisement, pamphlet, circular, form letter or other sales literature addressed or intended for distribution to prospective investors;
d. Any record of the initial determination that a director is not an interested person of the fund, and each subsequent determination that the director is not an interested person of the fund, including any questionnaire and any other document used to determine that a director is not an interested person of the company;
e. Any materials used by the disinterested directors of a fund to determine that a person who is acting as legal counsel to those directors is an independent legal counsel; and
f. Any documents or other written information considered by the directors of the fund pursuant to section 15(c) of the Act (15 U.S.C. 80a-15(c)) in approving the terms or renewal of a contract or agreement between the fund and an investment advisor.
3. Every underwriter, broker, or dealer that is a majority-owned subsidiary of a fund must preserve records required to be preserved by brokers and dealers under rules adopted under section 17 of the Securities Exchange Act of 1934 (15 U.S.C. 78q) (“section 17”) for the periods established in those rules.
4. Every depositor of a fund, and every principal underwriter of a fund (other than a closed-end fund), must preserve for at least six years records required to be maintained by brokers and dealers under rules adopted under section 17 to the extent the records are necessary or appropriate to record the entity's transactions with the fund.
5. Every investment adviser that is a majority-owned subsidiary of a fund must preserve the records required to be preserved by investment advisers under rules adopted under section 204 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-4) (“section 204”) for the periods specified in those rules.
6. Every investment adviser that is not a majority-owned subsidiary of a fund must preserve for at least six years records required to be maintained by registered investment advisers under rules adopted under section 204 to the extent the records are necessary or appropriate to reflect the adviser's transactions with the fund.
The records required to be maintained and preserved under this part may be maintained and preserved for the required time by, or on behalf of, a fund on (i) micrographic media, including microfilm, microfiche, or any similar medium, or (ii) electronic storage media, including any digital storage medium or system that meets the terms of rule 31a-2(f). The fund, or person that maintains and preserves records on its behalf, must arrange and index the records in a way that permits easy location, access, and retrieval of any particular record.
We periodically inspect the operations of all funds to ensure their compliance with the provisions of the Act and the rules under the Act. Our staff spends a significant portion of its time in these inspections reviewing the information contained in the books and records required to be kept by rule 31a-1 and to be preserved by rule 31a-2.
There are 3,484 funds currently operating as of March 31, 2012, all of which are required to comply with rule 31a-2. Based on conversations with representatives of the fund industry and past estimates, our staff estimates that each fund currently spends 220 total hours per year complying with rule 31a-2. Our staff estimates that the 220 hours spent by a typical fund would be split evenly between administrative and
The hour burden estimates for retaining records under rule 31a-2 are based on our experience with registrants and our experience with similar requirements under the Act and the rules under the Act. The number of burden hours may vary depending on, among other things, the complexity of the fund, the issues faced by the fund, and the number of series and classes of the fund.
Based on conversations with representatives of the fund industry and past estimates, our staff estimates that the average cost of preserving books and records required by rule 31a-2 is approximately $70,000 annually per fund. As discussed previously, there are 3,484 funds currently operating, for a total cost of preserving records as required by rule 31a-2 of approximately $243,880,000 per year.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms.
The collection of information under rule 31a-2 is mandatory for all funds. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Form N-3 (17 CFR 239.17a and 274.11b) under the Securities Act of 1933 (15 U.S.C. 77) and under the Investment Company Act of 1940 (15 U.S.C. 80a), Registration Statement of Separate Accounts Organized as Management Investment Companies.” Form N-3 is the form used by separate accounts offering variable annuity contracts which are organized as management investment companies to register under the Investment Company Act of 1940 (“Investment Company Act”) and/or to register their securities under the Securities Act of 1933 (“Securities Act”). Form N-3 is also the form used to file a registration statement under the Securities Act (and any amendments thereto) for variable annuity contracts funded by separate accounts which would be required to be registered under the Investment Company Act as management investment companies except for the exclusion provided by Section 3(c)(11) of the Investment Company Act (15 U.S.C. 80a-3(c)(11)). Section 5 of the Securities Act (15 U.S.C. 77e) requires the filing of a registration statement prior to the offer of securities to the public and that the statement be effective before any securities are sold, and Section 8 of the Investment Company Act (15 U.S.C. 80a-8) requires a separate account to register as an investment company.
Form N-3 also permits separate accounts offering variable annuity contracts which are organized as investment companies to provide investors with a prospectus and a statement of additional information covering essential information about the separate account when it makes an initial or additional offering of its securities. Section 5(b) of the Securities Act requires that investors be provided with a prospectus containing the information required in a registration statement prior to the sale or at the time of confirmation or delivery of the securities. The form also may be used by the Commission in its regulatory review, inspection, and policy-making roles.
Commission staff estimates that there are zero initial registration statements and 7 post-effective amendments to initial registration statements filed on Form N-3 annually and that the average number of portfolios referenced in each post-effective amendment is 2. The Commission further estimates that the hour burden for preparing and filing a post-effective amendment on Form N-3 is 155.2 hours per portfolio. The total annual hour burden for preparing and filing post-effective amendments is 2172.8 hours (7 post-effective amendments × 2 portfolios × 155.2 hours per portfolio). The estimated annual hour burden for preparing and filing initial registration statements is 0 hours. The total annual hour burden for Form N-3, therefore, is estimated to be 2172.8 hours (2172.8 hours + 0 hours).
The information collection requirements imposed by Form N-3 are mandatory. Responses to the collection of information will not be kept confidential. An agency may not conduct or sponsor, and a person is not
Written 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 will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an email to:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold a Closed Meeting on Thursday, August 30, 2012 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Aguilar, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Thursday, August 30, 2012 will be: institution and settlement of injunctive actions; institution and settlement of administrative proceedings; a litigation matter; and other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Fees Schedule. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to make clarifying, non-substantive changes to its Fees Schedule in order to make it easier to comprehend for market participants. On August 3, 2012, the Exchange proposed to begin referring to “straight, one-sided orders” as “simple orders”.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
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 email 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”)
As discussed below, this rule change will mitigate risk associated with corporate action processing by eliminating erroneous short positions caused by failure of Participants to move their shares from their segregation account to their general free account. The change will also bring operational efficiencies to DTC by reducing the number of manual adjustments related to correcting Participant short positions and reversing the 130% short position charge.
In its filing with the Commission, DTC 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. DTC has prepared summaries, set forth in sections A, B,
DTC processes mandatory corporate actions through its Reorg, Dividends, Proxy (“RDP”) system. Currently, when processing a mandatory corporate action in which securities are exchanged, the RDP system will automatically debit the position from the Participant's general free account. However, in certain instances, a Participant may have, prior to the split, moved the position from its general free account to its segregation account.
In an effort to mitigate risk associated with mandatory corporate action processing, DTC is updating its systems so that it will debit a Participant's position in either its segregation account or free account, as appropriate, and allocate the appropriate proportion of the position in the new CUSIP to the Participant's segregation account and free account, as appropriate. This change will mitigate risk associated with corporate action processing by eliminating erroneous short positions caused by failure of Participants to move their shares from their segregation account to their general free account. The change will also bring operational efficiencies to DTC by reducing the number of manual adjustments related to correcting Participant short positions and reversing the 130% short position charge.
DTC expects to implement these changes in the first quarter of 2013. DTC will announce the implementation date by Important Notice.
DTC believes that the proposed rule change is consistent with the requirements of Section 17A of the Act and the rules and regulations thereunder applicable to DTC in that it will facilitate the prompt and accurate clearance and settlement of securities transactions by streamlining processes associated with corporate action events and mitigating risk associated with such processing.
DTC does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email 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 June 28, 2012, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2012-10 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change would terminate OCC's pledge program (the “Program”). Since implementation of the Program, only a limited number of clearing members participated and those that did participate did so on a sporadic basis. OCC is eliminating the Program in its entirety.
The Program was adopted by OCC in the early 1980s to facilitate the ability of an OCC clearing member to finance positions by permitting the clearing member to pledge unsegregated long positions in cleared securities (other than securities futures) for a loan of cash. The Program was initially designed for, and used by, firms clearing market maker business; however, use of the Program diminished as market making operations were acquired by larger wire houses. While OCC occasionally receives an inquiry regarding the Program, it has been essentially dormant for some time. OCC recently reviewed the Program and determined that any potential benefits that OCC may gain through updating the Program are greatly offset by the resources required for such modernization. Accordingly, OCC is terminating the Program in its entirety.
OCC is eliminating Rule 614 in its entirety as well as references to the Program and Rule 614 in its Rules and in its By-Laws.
Section 19(b)(2)(C) of the Act
The changes to OCC's Rules and By-Laws are designed to allow OCC to remove a rarely used operational function and focus its resources on core clearing operations. Moreover, the elimination of the Program will not materially affect clearing members given its limited and infrequent use. The rule change is not inconsistent with any rules of OCC, including any proposed to be amended. As a result, the rule change is consistent with the requirements of Section 17A(b)(3)(F) of the Act.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act and in particular with the requirements of Section 17A of the Act
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The purpose of the proposed rule change is to update the DTC Custody Guide with respect to which assets are eligible to be held for Custody Safekeeping and to make other administrative changes and clarifications.
In its filing with the Commission, DTC included statements concerning the purpose 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. DTC has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Custody Service enables Participants that hold securities which are not presently eligible for book-entry
• Clarifying which assets are eligible to be held for Custody Safekeeping by noting DTC's Custody Service will hold certain “Non-Standard” type assets, fully disclosed, for safekeeping only. These assets include, but are not limited to, Option Agreements and Warrant to Purchase. DTC does not accept any liability should such assets be lost, stolen or destroyed. Depositing participants assume full liability as well as responsibility for replacement of lost, stolen or destroyed fully disclosed “Non-Standard” assets;
• Modifying the timeframe within which DTC must receive settlement delivery instructions from Participants in order to meet industry cutoff times;
• Removing duplicative language and language regarding the funds only settlement system and the dividend settlement system since such systems were incorporated into the Envelope Settlement Service;
• Making clarifications regarding the description of custody services, the vault, inputs and methods of notification.
DTC believes that the proposed rule change is consistent with the requirements of the Securities Exchange Act of 1934, as amended (the “Act”), and the rules and regulations thereunder, applicable to DTC in that it promotes efficiencies in the prompt and accurate clearance and settlement of securities transactions by enhancing the utilization of DTC's existing services. Moreover, the proposed rule change reduces the costs, inefficiencies and risks associated with the physical safe-keeping of securities by clarifying the procedures associated with the Custody Service.
DTC does not believe that the proposed rule change will have any impact, or impose any burden, on competition.
Written comments relating to the proposed rule change have not yet been solicited or received. DTC will notify the Commission of any written comments received by DTC.
The foregoing rule change was filed pursuant to Section 19(b)(3)(A)
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 email to
• Send in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC, 20549-1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-DTC-2012-06 and should be submitted on or before September 18, 2012.
For the Commission, by the Division of Trading and Markets, pursuant to delegated
authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): RiverFront Strategic Income Fund. The text of the proposed rule change is available on 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 those 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 parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the RiverFront Strategic Income Fund (the “Fund”) under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the investment objective of the Fund is to seek total return with an emphasis on income as the source of that total return.
The Fund seeks to achieve its investment objective by investing in a global portfolio of fixed income securities of various maturities, ratings and currency denominations. The Fund intends to utilize various investment strategies in a broad array of fixed income sectors. The Fund will allocate its investments based upon the analysis of the Sub-Adviser of the pertinent economic and market conditions, as well as yield, maturity and currency considerations.
The Fund may purchase fixed income securities issued by U.S. or foreign corporations
The Fund may invest in mortgage-backed securities (“MBS”) issued or guaranteed by federal agencies and/or U.S. government sponsored instrumentalities, such as the Government National Mortgage Administration (“Ginnie Mae”), the Federal Housing Administration (“FHA”), the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”).
The Fund may invest without limitation in debt securities denominated in foreign currencies and in U.S. dollar-denominated debt securities of foreign issuers, including securities of issuers located in emerging markets. The Sub-Adviser may attempt to reduce currency risk by entering into contracts with banks, brokers or dealers to purchase or sell securities or foreign currencies at a future date (“forward contracts”). The Fund may enter into foreign currency forward and foreign currency futures contracts to facilitate local securities settlements or to protect against currency exposure in connection with its distributions to shareholders.
The Fund has not established any credit rating criteria for the fixed income securities in which it may invest, and it may invest entirely in high yield securities (“junk bonds”). Junk bonds are debt securities that are rated below investment grade by nationally recognized statistical rating organizations (“NRSROs”), or are unrated securities that the Sub-Adviser believes are of comparable quality. The Sub-Adviser considers the credit ratings assigned by NRSROs as one of several factors in its independent credit analysis of issuers.
According to the Registration Statement, the Fund may also invest in money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments, structured notes (notes on which the amount of principal repayment and interest payments are based on the movement of one or more specified factors, such as the movement of a particular bond or bond index), and, in accordance with the Exemptive Order, in swaps, options and futures contracts. The Fund may also invest in municipal securities. The Fund may invest up to 5% of its assets in MBS (which may include commercial mortgage-backed securities (“CMBS”)) or other asset-backed securities issued or guaranteed by private issuers. The Fund may also invest in money market instruments or other short-term fixed income instruments as part of a temporary defensive strategy to protect against temporary market declines.
The Fund may invest in commercial paper and other short-term corporate instruments.
The Fund may purchase participations in corporate loans. Participation interests generally will be acquired from a commercial bank or other financial institution (a “Lender”) or from other holders of a participation interest (a “Participant”). The purchase of a participation interest either from a Lender or a Participant will not result in any direct contractual relationship with the borrowing company (the “Borrower”). The Fund generally will have no right directly to enforce compliance by the Borrower with the terms of the credit agreement. Instead, the Fund will be required to rely on the Lender or the Participant that sold the participation interest, both for the enforcement of the Fund's rights against the Borrower and for the receipt and processing of payments due to the Fund under the loans. Under the terms of a participation interest, the Fund may be regarded as a member of the Participant, and thus the Fund is subject to the credit risk of both the Borrower and a Participant. Participation interests are generally subject to restrictions on resale. Generally, the Fund considers participation interests to be illiquid and therefore subject to the Fund's percentage limitations for investments in illiquid securities.
The Fund may invest in securities that have variable or floating interest rates which are readjusted on set dates (such as the last day of the month or calendar quarter) in the case of variable rates or whenever a specified interest rate change occurs in the case of a floating rate instrument. Variable or floating interest rates generally reduce changes in the market price of securities from their original purchase price because, upon readjustment, such rates approximate market rates. Accordingly, as interest rates decrease or increase, the potential for capital appreciation or depreciation is less for variable or floating rate securities than for fixed rate obligations. Many securities with variable or floating interest rates purchased by the Fund are subject to payment of principal and accrued interest (usually within seven days) on the Fund's demand. The terms of such demand instruments require payment of principal and accrued interest by the issuer, a guarantor and/or a liquidity provider. The Sub-Adviser will monitor the pricing, quality and liquidity of the variable or floating rate securities held by the Fund.
The Fund may enter into repurchase agreements, which are agreements pursuant to which securities are acquired by the Fund from a third party with the understanding that they will be repurchased by the seller at a fixed price on an agreed date. These agreements may be made with respect to any of the portfolio securities in which the Fund is authorized to invest. Repurchase agreements may be characterized as loans secured by the underlying securities.
The Fund may enter into reverse repurchase agreements, which involve the sale of securities with an agreement to repurchase the securities at an agreed-upon price, date and interest payment and have the characteristics of borrowing. The securities purchased with the funds obtained from the agreement and securities collateralizing the agreement will have maturity dates no later than the repayment date.
The Fund may purchase when-issued securities. Purchasing securities on a “when-issued” basis means that the date for delivery of and payment for the securities is not fixed at the date of purchase, but is set after the securities are issued. The payment obligation and, if applicable, the interest rate that will be received on the securities are fixed at the time the buyer enters into the commitment. The Fund will only make commitments to purchase such securities with the intention of actually acquiring such securities, but the Fund may sell these securities before the settlement date if it is deemed advisable.
The Fund may not hold more than 15% of its net assets in: (1) Illiquid securities (which include participation interests); and (2) Rule 144A securities.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Fund's investments will be consistent with the Fund's investment objective and will not be used to enhance leverage.
The Fund will not invest in non-US equity securities.
Shares may be created and redeemed in “Creation Unit” size aggregations of 50,000 or multiples thereof. In order to purchase Creation Units of the Fund, an investor must generally deposit a designated portfolio of securities (the “Deposit Securities”) (and/or an amount in cash in lieu of some or all of the Deposit Securities) and generally make a cash payment referred to as the “Cash Component.” The list of the names and the amounts of the Deposit Securities is made available by the Fund's custodian through the facilities of the NSCC immediately prior to the opening of business each day of the NYSE Arca. The Cash Component represents the difference between the NAV of a Creation Unit and the market value of the Deposit Securities. Creations and redemptions of Shares may only be made through an Authorized Participant, as described in the Registration Statement.
Shares may be redeemed only in Creation Units at their NAV and only on a day the NYSE Arca is open for business. The Fund's custodian will make available immediately prior to the opening of business each day of the NYSE Arca, through the facilities of the NSCC, the list of the names and the amounts of the Fund's portfolio securities that will be applicable that day to redemption requests in proper form (“Fund Securities”). Fund Securities received on redemption may not be identical to Deposit Securities, which are applicable to purchases of Creation Units. Unless cash redemptions or partial cash redemptions are available or specified for the Fund, the redemption proceeds will consist of the Fund Securities, plus cash in an amount equal to the difference between the NAV of Shares being redeemed as next determined after receipt by the transfer agent of a redemption request in proper form, and the value of the Fund Securities (the “Cash Redemption Amount”), less the applicable redemption fee and, if applicable, any transfer taxes.
According to the Registration Statement, the NAV per Share of the Fund will be computed by dividing the value of the net assets of the Fund (i.e., the value of its total assets less total liabilities) by the total number of Shares of the Fund outstanding, rounded to the nearest cent. Expenses and fees, including without limitation, the management and administration fees, will be accrued daily and taken into account for purposes of determining NAV. The NAV per Share will be calculated by the Fund's custodian and determined as of the close of the regular trading session on the New York Stock Exchange (“NYSE”) (ordinarily 4:00 p.m., Eastern Time) on each day that such exchange is open.
In computing the Fund's NAV, the Fund's debt securities will be valued at market value. Market value generally means a valuation (i) obtained from an exchange, a pricing service or a major market maker (or dealer), (ii) based on a price quotation or other equivalent indication of value supplied by an exchange, a pricing service or a major market maker (or dealer) or (iii) based on amortized cost. The Fund's debt securities are thus valued by reference to a combination of transactions and quotations for the same or other securities believed to be comparable in quality, coupon, maturity, type of issue, call provisions, trading characteristics and other features deemed to be relevant. To the extent the Fund's debt
According to the Registration Statement, there can be no assurance as to whether and/or the extent to which the Shares will trade at premiums or discounts to NAV. The deviation risk may be heightened to the extent the Fund invests in MBS, as such investments may be difficult to value. Because MBS may trade infrequently, the most recent trade price may not indicate their true value. As noted above, a third-party pricing service may be used to value some or all of the Fund's MBS. To the extent that market participants question the accuracy of the pricing service's prices, there is a risk of significant deviation between the NAV and market price of some or all of the MBS in which the Fund invests.
The Portfolio Indicative Value (“PIV”) as defined in NYSE Arca Equities Rule 8.600(c)(3) of Shares of the Fund will be widely disseminated by one or more major market data vendors at least every fifteen seconds during the Exchange's Core Trading Session. To the extent the Fund holds securities that are traded in foreign markets, the PIV calculations will be based on such foreign market prices and may not reflect events that occur subsequent to the foreign market's close. As a result, premiums and discounts between the approximate value and the market price could be affected. This approximate value should not be viewed as a “real-time” update of the NAV per Share of the Fund because the approximate value may not be calculated in the same manner as the NAV, which is computed once a day, generally at the end of the business day.
The Fund's Web site (
The Fund's portfolio holdings will be disclosed on its Web site daily after the close of trading on the Exchange and prior to the opening of trading on the Exchange the following day.
On a daily basis, the Adviser will disclose for each portfolio security and financial instrument of the Fund the following information: ticker symbol (if applicable), name of security and financial instrument, number of shares, if applicable, and dollar value of financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. The Web site information will be publicly available at no charge. In addition, intra-day and end-of-day prices for all debt securities or other financial instruments held by the Fund will be available through major market data vendors and broker-dealers.
In addition, a basket composition file disclosing the Fund Securities, which includes the security names and share quantities required to be delivered in exchange for Fund Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via the National Securities Clearing Corporation. The basket represents one Creation Unit of the Fund. Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Managed Fund Shares) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange may obtain information via the Intermarket Surveillance Group (“ISG”) from other exchanges that are members of ISG or with which the Exchange has entered into a surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (4) how information regarding the PIV is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Exchange Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern Time each trading day.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Adviser is affiliated with a broker-dealer and has represented that it has implemented a fire wall with respect to its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio. The Exchange will obtain a representation from the issuer of the Shares that the
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2012-88. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 928NY to expand the existing Market Maker Risk Limitation Mechanism to make it available for orders from Market Makers as well as non-Market Maker ATP Holders, and to provide for two additional risk limitation mechanisms. The text of the proposed rule change is available on 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 those 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 parts of such statements.
The Exchange adopted the existing Market Maker Risk Limitation Mechanism to provide a transaction-based mechanism for limiting a Market Maker's risk during periods of increased and significant trading activity on the Exchange in the Market Maker's appointment.
As noted above, the Exchange is proposing to make the three Risk Limitation Mechanisms available to non-Market Makers. The Exchange is proposing this change to respond to requests from non-Market Makers that engage in rapid, proprietary trading. In this regard, non-Market Makers can have risk exposure similar to that of Market Makers, and have similarly sought ways to mitigate this risk. The Exchange believes that making the Risk Limitation Mechanisms available to non-Market Makers will assist them in these efforts.
As is the case today with the Market Maker Risk Limitation Mechanism, the trade counters, and therefore the Risk Limitation Mechanisms themselves, would be based on trading permit identification (“TPID”).
The existing Market Maker Risk Limitation Mechanism is transaction-based and automatically cancels all quotes posted by a Market Maker in an appointed class if the trade counter determines that “n” executions within one second have occurred against the quotes of the Market Maker in the particular appointed class.
The Exchange proposes to amend Rule 928NY(b) to apply the existing Market Maker Risk Limitation Mechanism not only to Market Maker quotes, but also to non-Market Maker and Market Maker orders. As proposed, and similar to the existing process for Market Maker quotes,
The Exchange proposes to provide for a new Volume-Based Risk Limitation Mechanism under Rule 928NY(c). The proposed Volume-Based Risk Limitation Mechanism would be triggered whenever one of the following conditions is met: (1) For a non-Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the non-Market Maker's orders in a specified class; (2) for a Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the Market Maker's orders in a specified class; or (3) for a Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the Market Maker's quotes in an appointed class.
The Exchange proposes to provide for a new Percentage-Based Risk Limitation Mechanism under Rule 928NY(d).
For Examples 1 and 2, if a Market Maker is quoting at the National Best Bid or Offer (“NBBO”) in four series of an appointed class, and specifies its “p” percentage at 100%, a trade counter would calculate such percentage as follows:
In Example 1, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 100% is 95 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
In Example 2, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 100% is 150 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
For Example 3, if a Market Maker is quoting at the NBBO in four series of a particular option class, and specifies its “p” percentage at 200%, a trade counter would calculate such percentage as follows:
In Example 3, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 200% is 190 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
The trade counters serve as the basis for determining whether a Risk Limitation Mechanism is triggered. Rule 928NY(a) currently describes the existing trade counter, which is incremented every time a Market Maker executes a trade against its quote in any series in an appointed class. The Exchange proposes to amend Rule 928NY(a) to reflect that the existing trade counter will be replaced by separate trade counters that the System will maintain for each of the following scenarios: (1) When a non-Market Maker order is executed in any series in a specified class;
As proposed under new Commentary .01 to Rule 928NY, and similar to the current description in existing Rule 928NY(b), the System would automatically cancel electronic orders or quotes pursuant to proposed paragraph (e) of Rule 928NY
As proposed under new Commentary .02 to Rule 928NY, and similar to the current description in Rule 928NY(d), if one of the Risk Limitation Mechanisms is triggered pursuant to proposed paragraph (b)(1) or (2), (c)(1) or (2), or (d)(1) or (2) of Rule 928NY, any orders sent by the non-Market Maker or Market Maker, respectively, in the specified class would be rejected until the non-Market Maker or Market Maker submits a message to the System to enable the entry of new orders. Similarly, if one of the Risk Limitation Mechanisms is triggered pursuant to proposed paragraph (b)(3), (c)(3), or (d)(3) of Rule 928NY, any quotes sent by the Market Maker in the appointed class would be rejected until the Market Maker submits a message to the System to enable the entry of new quotes.
As proposed under new Commentary .03 to Rule 928NY, the Exchange would specify via Regulatory Bulletin any applicable minimum, maximum and/or default settings for the Risk Limitation Mechanisms proposed under Rule 928NY.
Upon receiving notification of a change to the settings for the Risk Limitation Mechanisms by the Exchange, ATP Holders will be able to make adjustments they deem necessary to their own risk settings for the Risk Limitation Mechanisms using the same electronic interface that they use to send quotes and orders to the Exchange. In addition, ATP Holders may elect to adjust risk settings in their own proprietary systems in reaction to any changes initiated by the Exchange. When adjusting risk parameters for the Risk Limitation Mechanisms and/or a proprietary system, in reaction to a change to the risk settings by the Exchange, ATP Holders are able to utilize functionality that is both readily available and user controlled.
Accordingly, the Exchange believes that providing ATP Holders with at least one day's advance notice prior to making adjustments to the settings of the Risk Limitation Mechanisms will afford ATP Holders sufficient time to review their risk settings and make operational and/or technological changes, to either the user controlled risk settings for the Risk Limitation Mechanisms or to their own proprietary systems, necessary to accommodate any such changes made by the Exchange.
As proposed under new Commentary .04 to Rule 928NY, once a Market Maker activates a Risk Limitation Mechanism provided under Rule 928NY for its quotes in an appointed class, the mechanism, and the settings established by the Market Maker, would remain active unless, and until, the Market Maker deactivates the mechanism or changes the settings.
As proposed under new Commentary .05 to Rule 928NY, and similar to the current description under Rule 928NY(f), in the event that there are no Market Makers quoting in a class, the best bids and offers of those orders residing in the Consolidated Book in the class shall be disseminated as the Exchange's best bid or best offer. If there are no Market Makers quoting in the class and there are no orders in the Consolidated Book in the class, the System would disseminate a bid of zero and an offer of zero.
As proposed under new Commentary .06 to Rule 928NY, the trade counters would automatically reset and commence a new count (1) when a time period specified by the Exchange elapses or, (2) if one of the Risk Limitation Mechanisms provided under Rule 928NY is triggered for a particular class, when the non-Market Maker or Market Maker submits a message to the System to enable the entry of new orders or quotes, as provided in proposed Commentary .02 to Rule 928NY.
As proposed under new Commentary .07 to Rule 928NY, only executions against order types specified by the Exchange via Regulatory Bulletin and against quotes of Market Makers would be considered by a trade counter.
As proposed under new Commentary .08 to Rule 928NY, a determination of whether the conditions of proposed paragraph (b), (c) or (d) of Rule 928NY have been met, and any resulting cancellation of orders or quotes pursuant to proposed paragraph (e) of Rule 928NY, shall be made on the basis of TPID.
Finally, as proposed under new Commentary .09 to Rule 928NY the terms “class” and “classes” include all option series, both puts and calls, overlying the same underlying security. The purpose of Commentary .09 is to eliminate any potential confusion as to the scope of the proposed Risk Limitation Mechanisms.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
In particular, the proposed rule change would prevent fraudulent and manipulative acts and practices and promote just and equitable principles of trade because it would provide non-Market Makers and Market Makers with greater control and flexibility with respect to managing risk and the manner in which they enter orders and quotes. This would be accomplished by expanding the existing Market Maker Risk Limitation Mechanism to Market Maker orders and the orders of non-Market Makers as well as through the creation of the proposed new Volume-Based and Percentage-Based Risk Limitation Mechanisms. Increased control and flexibility would also be accomplished by lowering the minimum time period applicable to the Risk Limitation Mechanisms, as compared to the existing Market Maker Risk Limitation Mechanism, from one second to no less than 100 milliseconds. In this regard, the Exchange believes that a lower minimum time period would be more consistent with the rapid trading that occurs in today's highly automated and electronic trading environment. The Exchange also believes that the increased control and flexibility that would result from this proposal would foster cooperation and coordination with persons engaged in regulating, clearing, settling, and processing information with respect to, and facilitating transactions in, securities.
The Exchange further believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because it would promote consistency, fairness, and objectivity by making the Risk Limitation Mechanisms available to all non-Market Makers and Market Makers, which therefore may enhance the Exchange's overall market quality. The Exchange believes that the potential increase in the Exchange's overall market quality that could result from the Risk Limitation Mechanisms could therefore contribute to the protection of investors and the public interest.
The Exchange further believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because it would permit the Exchange to announce the minimum, maximum and default settings for the Risk Limitation Mechanisms, as well as any applicable time period(s) and order types, via Regulatory Bulletin. The Exchange believes that the flexibility of announcing these details via Regulatory Bulletin is necessary because it would permit the Exchange to reasonably ensure that, for example, the applicable settings are at a level that is consistent with existing market conditions, such that the Risk Limitation Mechanisms are able to operate in the manner intended. Use of Regulatory Bulletins would also be consistent with the manner in which the Exchange currently announces the minimum, maximum and default settings for the existing Market Maker Risk Limitation Mechanism as well as the manner in which the Commission currently permits other option exchanges to communicate settings or parameters for various exchange mechanisms to their members other than through the rule filing process,
The Exchange also believes that the use of Regulatory Bulletins in this manner would further remove impediments to, and perfect the mechanisms of, a free and open market by reducing the resources that would otherwise be expended, by both the Exchange and the Commission, if the Exchange is required to propose a rule change with the Commission each time it wishes to change these settings. However, while the Exchange would have certain discretion with respect to the levels at which it could adjust these settings, the Exchange would not be permitted to adjust the settings below the minimum levels proposed herein. The Exchange believes that this would reasonably ensure that the settings are at all times within a reasonable range.
The Exchange notes that the proposed rule change would not relieve a non-Market Maker or Market Maker of its “firm quote” obligation under Rule 602 of Regulation NMS
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEMKT-2012-39. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 22, 2012, EDGX Exchange, Inc. (“Exchange” or “EDGX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
EDGX Rule 11.3(b) sets forth the requirements for Sponsored Participants to obtain authorized access to the Exchange's System.
EDGX proposes to amend Rule 1.5(z), defining Sponsored Participant, and Rule 11.3(b), related to access by Sponsored Participants, to clarify the obligations of Sponsoring Members and Sponsored Participants. EDGX proposes to define Sponsored Participant as “a person which has entered into an arrangement with one or more Sponsoring Members whereby such person obtains authorized access to the System in accordance with Rule 11.3.”
EDGX also proposes amendments to maintain transparency into who is accessing the Exchange's System.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 1 thereto, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds that the instant proposed rule change is consistent with the Act. The Commission notes that the Exchange believes the proposal should serve to eliminate potential confusion regarding the obligations of Sponsoring Members and Sponsored Participants under Exchange rules. In addition, the Commission notes that the Exchange proposes to require Sponsoring Members to comply with Rule 15c3-5 under the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 22, 2012, EDGA Exchange, Inc. (“Exchange” or “EDGA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
EDGA Rule 11.3(b) sets forth the requirements for Sponsored Participants to obtain authorized access to the Exchange's System.
EDGA proposes to amend Rule 1.5(z), defining Sponsored Participant, and Rule 11.3(b), related to access by Sponsored Participants, to clarify the obligations of Sponsoring Members and Sponsored Participants. EDGA proposes to define Sponsored Participant as “a person which has entered into an arrangement with one or more Sponsoring Members whereby such person obtains authorized access to the System in accordance with Rule 11.3.”
EDGA also proposes amendments to maintain transparency into who is accessing the Exchange's System.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment No. 1 thereto, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds that the instant proposed rule change is consistent with the Act. The Commission notes that the Exchange believes the proposal should serve to eliminate potential confusion regarding the obligations of Sponsoring Members and Sponsored Participants under Exchange rules. In addition, the Commission notes that the Exchange proposes to require Sponsoring Members to comply with Rule 15c3-5 under the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Options Rule 6.40 to expand the existing Market Maker Risk Limitation Mechanism to make it available for orders from Market Makers as well as non-Market Maker OTP Firms and OTP Holders, and to provide for two additional risk limitation mechanisms. The text of the proposed rule change is available on 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 those 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 parts of such statements.
The Exchange adopted the existing Market Maker Risk Limitation Mechanism to provide a transaction-based mechanism for limiting a Market Maker's risk during periods of increased and significant trading activity on the Exchange in the Market Maker's appointment.
As noted above, the Exchange is proposing to make the three Risk Limitation Mechanisms available to non-Market Makers. The Exchange is proposing this change to respond to requests from non-Market Makers that engage in rapid, proprietary trading. In this regard, non-Market Makers can have risk exposure similar to that of Market Makers, and have similarly sought ways to mitigate this risk. The Exchange believes that making the Risk Limitation Mechanisms available to non-Market Makers will assist them in these efforts.
As is the case today with the Market Maker Risk Limitation Mechanism, the trade counters, and therefore the Risk Limitation Mechanisms themselves, would be based on trading permit identification (“TPID”).
The existing Market Maker Risk Limitation Mechanism is transaction-based and automatically cancels all quotes posted by a Market Maker in an appointed class if the trade counter determines that “n” executions within one second have occurred against the quotes of the Market Maker in the particular appointed class.
The Exchange proposes to amend NYSE Arca Options Rule 6.40(b) to apply the existing Market Maker Risk Limitation Mechanism not only to Market Maker quotes, but also to non-Market Maker and Market Maker orders. As proposed, and similar to the existing process for Market Maker quotes,
The Exchange proposes to provide for a new Volume-Based Risk Limitation Mechanism under NYSE Arca Options Rule 6.40(c). The proposed Volume-Based Risk Limitation Mechanism would be triggered whenever one of the following conditions is met: (1) For a non-Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the non-Market Maker's orders in a specified class; (2) for a Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the Market Maker's orders in a specified class; or (3) for a Market Maker, when a trade counter has reached “k” contracts traded within a time period specified by the Exchange against the Market Maker's quotes in an appointed class.
The Exchange proposes to provide for a new Percentage-Based Risk Limitation Mechanism under NYSE Arca Options Rule 6.40(d).
For Examples 1 and 2, if a Market Maker is quoting at the National Best Bid or Offer (“NBBO”) in four series of an appointed class, and specifies its “p” percentage at 100%, a trade counter would calculate such percentage as follows:
In Example 1, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 100% is 95 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
In Example 2, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 100% is 150 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
For Example 3, if a Market Maker is quoting at the NBBO in four series of a particular option class, and specifies its “p” percentage at 200%, a trade counter would calculate such percentage as follows:
In Example 3, the aggregate number of contracts executed among all series during the time period specified by the Exchange that equals the specified percentage of 200% is 190 contracts, at which point the Percentage-Based Risk Limitation Mechanism would be triggered and the Market Maker's remaining quotes in the appointed class would be cancelled.
The trade counters serve as the basis for determining whether a Risk Limitation Mechanism is triggered. NYSE Arca Options Rule 6.40(a) currently describes the existing trade counter, which is incremented every time a Market Maker executes a trade against its quote in any series in an appointed class. The Exchange proposes to amend NYSE Arca Options Rule 6.40(a) to reflect that the existing trade counter will be replaced by separate trade counters that the NYSE Arca System will maintain for each of the
As proposed under new Commentary .01 to NYSE Arca Options Rule 6.40, and similar to the current description in existing NYSE Arca Options Rule 6.40(b), the NYSE Arca System would automatically cancel electronic orders or quotes pursuant to proposed paragraph (e) of NYSE Arca Options Rule 6.40
As proposed under new Commentary .02 to NYSE Arca Options Rule 6.40, and similar to the current description in NYSE Arca Options Rule 6.40(d), if one of the Risk Limitation Mechanisms is triggered pursuant to proposed paragraph (b)(1) or (2), (c)(1) or (2), or (d)(1) or (2) of NYSE Arca Options Rule 6.40, any orders sent by the non-Market Maker or Market Maker, respectively, in the specified class would be rejected until the non-Market Maker or Market Maker submits a message to the NYSE Arca System to enable the entry of new orders. Similarly, if one of the Risk Limitation Mechanisms is triggered pursuant to proposed paragraph (b)(3), (c)(3), or (d)(3) of NYSE Arca Options Rule 6.40, any quotes sent by the Market Maker in the appointed class would be rejected until the Market Maker submits a message to the NYSE Arca System to enable the entry of new quotes.
As proposed under new Commentary .03 to NYSE Arca Options Rule 6.40, the Exchange would specify via Regulatory Bulletin any applicable minimum, maximum and/or default settings for the Risk Limitation Mechanisms proposed under NYSE Arca Options Rule 6.40.
Upon receiving notification of a change to the settings for the Risk Limitation Mechanisms by the Exchange, OTP Holders and OTP Firms will be able to make adjustments they deem necessary to their own risk settings for the Risk Limitation Mechanisms using the same electronic interface that they use to send quotes and orders to the Exchange. In addition, OTP Holders and OTP Firms may elect to adjust risk settings in their own proprietary systems in reaction to any changes initiated by the Exchange. When adjusting risk parameters for the Risk Limitation Mechanisms and/or a proprietary system, in reaction to a change to the risk settings by the Exchange, OTP Holders and OTP Firms are able to utilize functionality that is both readily available and user controlled.
Accordingly, the Exchange believes that providing OTP Holders and OTP Firms with at least one day's advance notice prior to making adjustments to the settings of the Risk Limitation Mechanisms will afford OTP Holders and OTP Firms sufficient time to review their risk settings and make operational and/or technological changes, to either the user controlled risk settings for the Risk Limitation Mechanisms or to their own proprietary systems, necessary to accommodate any such changes made by the Exchange.
As proposed under new Commentary .04 to NYSE Arca Options Rule 6.40, once a Market Maker activates a Risk Limitation Mechanism provided under NYSE Arca Options Rule 6.40 for its quotes in an appointed class, the mechanism, and the settings established by the Market Maker, would remain active unless, and until, the Market Maker deactivates the mechanism or changes the settings.
As proposed under new Commentary .05 to NYSE Arca Options Rule 6.40, and similar to the current description under NYSE Arca Options Rule 6.40(f), in the event that there are no Market Makers quoting in a class, the best bids and offers of those orders residing in the Consolidated Book in the class shall be disseminated as the Exchange's best bid or best offer. If there are no Market Makers quoting in the class and there are no orders in the Consolidated Book in the class, the NYSE Arca System would disseminate a bid of zero and an offer of zero.
As proposed under new Commentary .06 to NYSE Arca Options Rule 6.40, the trade counters would automatically reset and commence a new count (1) when a time period specified by the Exchange elapses, or (2) if one of the Risk Limitation Mechanisms provided under NYSE Arca Options Rule 6.40 is triggered for a particular class, when the non-Market Maker or Market Maker submits a message to the NYSE Arca System to enable the entry of new orders or quotes, as provided in proposed Commentary .02 to Rule 6.40.
As proposed under new Commentary .07 to NYSE Arca Options Rule 6.40, only executions against order types specified by the Exchange via Regulatory Bulletin and against quotes of Market Makers would be considered by a trade counter.
As proposed under new Commentary .08 to NYSE Arca Options Rule 6.40, a determination of whether the conditions of proposed paragraph (b), (c) or (d) of NYSE Arca Options Rule 6.40 have been met, and any resulting cancellation of orders or quotes pursuant to proposed paragraph (e) of NYSE Arca Options Rule 6.40, shall be made on the basis of TPID.
Finally, as proposed under new Commentary .09 to NYSE Arca Options Rule 6.40 the terms “class” and “classes” include all option series, both puts and calls, overlying the same underlying security. The purpose of Commentary .09 is to eliminate any potential confusion as to the scope of the proposed Risk Limitation Mechanisms.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
In particular, the proposed rule change would prevent fraudulent and manipulative acts and practices and promote just and equitable principles of trade because it would provide non-Market Makers and Market Makers with greater control and flexibility with respect to managing risk and the manner in which they enter orders and quotes. This would be accomplished by expanding the existing Market Maker Risk Limitation Mechanism to Market Maker orders and the orders of non-Market Makers as well as through the creation of the proposed new Volume-Based and Percentage-Based Risk Limitation Mechanisms. Increased control and flexibility would also be accomplished by lowering the minimum time period applicable to the Risk Limitation Mechanisms, as compared to the existing Market Maker Risk Limitation Mechanism, from one second to no less than 100 milliseconds. In this regard, the Exchange believes that a lower minimum time period would be more consistent with the rapid trading that occurs in today's highly automated and electronic trading environment. The Exchange also believes that the increased control and flexibility that would result from this proposal would foster cooperation and coordination with persons engaged in regulating, clearing, settling, and processing information with respect to, and facilitating transactions in, securities.
The Exchange further believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because it would promote consistency, fairness, and objectivity by making the Risk Limitation Mechanisms available to all non-Market Makers and Market Makers, which therefore may enhance the Exchange's overall market quality. The Exchange believes that the potential increase in the Exchange's overall market quality that could result from the Risk Limitation Mechanisms could therefore contribute to the protection of investors and the public interest.
The Exchange further believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because it would permit the Exchange to announce the minimum, maximum and default settings for the Risk Limitation Mechanisms, as well as any applicable time period(s) and order types, via Regulatory Bulletin. The Exchange believes that the flexibility of announcing these details via Regulatory Bulletin is necessary because it would permit the Exchange to reasonably ensure that, for example, the applicable settings are at a level that is consistent with existing market conditions, such that the Risk Limitation Mechanisms are able to operate in the manner intended. Use of Regulatory Bulletins would also be consistent with the manner in which the Exchange currently announces the minimum, maximum and default settings for the existing Market Maker Risk Limitation Mechanism as well as the manner in which the Commission currently permits other option exchanges to communicate settings or parameters for various exchange mechanisms to their members other than through the rule filing process, i.e., via notices, bulletins or circulars.
The Exchange also believes that the use of Regulatory Bulletins in this manner would further remove impediments to, and perfect the mechanisms of, a free and open market by reducing the resources that would otherwise be expended, by both the Exchange and the Commission, if the Exchange is required to propose a rule change with the Commission each time it wishes to change these settings. However, while the Exchange would have certain discretion with respect to the levels at which it could adjust these settings, the Exchange would not be permitted to adjust the settings below the minimum levels proposed herein. The Exchange believes that this would reasonably ensure that the settings are at all times within a reasonable range.
The Exchange notes that the proposed rule change would not relieve a non-Market Maker or Market Maker of its “firm quote” obligation under Rule 602 of Regulation NMS
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend 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 email 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.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Florida dated 08/21/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 13230 6 and for economic injury is 13231 0.
The States which received an EIDL Declaration # are Florida, Alabama.
The Department of State's Bureau of Arms Control, Verification and Compliance (AVC) announces the following challenge: How Can the Crowd Support Arms Control Transparency Efforts? This challenge is the first “Innovation in Arms Control Challenge,” with the goal of spurring innovation, and developing scientific and technological options that will provide additional transparency and information related to compliance with existing or future arms control, nonproliferation and disarmament regimes.
The submission period for entries begins 3 p.m. EDT, August 28, 2012, and ends 5 p.m. EDT, October 26, 2012. Winners will be announced during the week of December 3, unless the term of the Contest is extended by DOS.
Jamie Mannina, Special Assistant for Public Affairs and Public Diplomacy, U.S. Department of State, Bureau of Arms Control, Verification and Compliance, 2201 C Street NW., Washington, DC 20520; Telephone (202) 647-7939;
This
1.
2.
3.
• a. Eligibility to participate: To be eligible to win a prize, in accordance with the America COMPETES Act, an individual or entity shall have registered to participate in the competition, comply with all requirements and rules related to this competition, and in the case of a private entity, shall be incorporated in and maintaining a primary place of business in the United States, and in the case of an individual (participating singly or in a team) shall be a citizen or permanent resident of the United States. In addition, an individual or entity may not be a Federal entity or a Federal employee acting within the scope of their employment. An individual or entity shall not be deemed ineligible because the individual or entity used Federal facilities or consulted with Federal employees during the competition if the facilities and employees are made available to all individuals and entities participating in the competition on an equitable basis. While submissions from ineligible Solvers are welcome and may be the subject of further interest, these will not be eligible to receive awards. If you have a question about eligibility, please refer to the following Web site: [
• b. Intellectual Property: The Solvers are not required to transfer exclusive intellectual property rights to the Seeker. Rather, by submitting a proposal, the Solvers grant to the Seeker a royalty-free, perpetual, and non-exclusive license to use any information included in this proposal.
• c. Liability: Registered participants will be required to agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from participation in the competition, whether the injury death, damage, or loss arises through negligence or otherwise.
• After the Challenge deadline, the Department of State will complete the review process and make a decision with regards to the Winning Solution(s) as described below. All Solvers that submitted a proposal will be notified on the status of their submissions; however, no detailed evaluation of individual submissions will be provided.
4.
5.
Winners will be selected based upon provision of the following:
1.
2.
3.
The Shipping Coordinating Committee (SHC) will conduct an open meeting for the International Maritime Organization's Marine Environment Protection Committee (MEPC).
The meeting will be held at 9:30 a.m. on Wednesday, September 21, 2012, in Room 2501 of the United States Coast Guard Headquarters Building, 2100 Second Street SW., Washington, DC, 20593. The primary purpose of the meeting is to prepare for the sixty-fourth session of the International Maritime Organization's Marine Environment Protection Committee (MEPC 64) to be held at the International Maritime Organization in London, United Kingdom from October 1st to 5th, 2012.
The primary matters to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, Ms. Regina Bergner not later than September 11, 2012, 10 days prior to the meeting. Contact should be made by email at
The Shipping Coordinating Committee (SHC) will conduct an open meeting at 9:30 a.m. on Thursday, September 20, 2012 in Room 5-0624 of the United States Coast Guard Headquarters Building, 2100 Second Street SW., Washington, DC 20593-0001. The primary purpose of the meeting is to prepare for the International Maritime Organization's (IMO) Diplomatic Conference for the Safety of Fishing Vessels to be held at the Cape Town International Convention Centre (CTICC), Convention Square, 1 Lower Long Street, Cape Town, South Africa, from October 9-11, 2012.
The agenda items to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process, and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, LCDR Catherine Phillips, by email at
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold its regular business meeting on September 20, 2012, in Harrisburg, Pennsylvania. Details concerning the matters to be addressed at the business meeting are contained in the Supplementary Information section of this notice.
September 20, 2012, at 8:30 a.m.
North Office Building, Hearing Room 1 (Ground Level), North Street (at Commonwealth Avenue), Harrisburg, Pa. 17120.
Richard A. Cairo, General Counsel, telephone: (717) 238-0423, ext. 306; fax: (717) 238-2436.
Interested parties are invited to attend the business meeting and encouraged to review the Commission's Public Meeting Rules of Conduct, which are posted on the Commission's Web site,
The business meeting will include actions on the following items: (1) Ratification/approval of agreements; (2) partial waiver of application fees for withdrawn applications; (3) conditional transfer extension request of Talon Holdings, LLC related to the Hawk Valley Gold Course, Lancaster County, Pa.; (4) issuance of corrective docket to Nature's Way Purewater Systems, Inc. (Covington Springs Borehole), Dupont Borough, Luzerne County, Pa.; and (5) Regulatory Program projects. Projects listed for Commission action are those that were the subject of a public hearing conducted by the Commission on August 23, 2012, and identified in the notice for such hearing, which was published in 77 FR 44703, July 30, 2012.
Pub. L. 91-575, 84 Stat. 1509
Federal Aviation Administration (FAA), DOT.
Notice.
The recently enacted Pilot's Bill of Rights (PBR) provides, among other things, that “air traffic data” should be made accessible to, or obtainable by, an airman in Federal Aviation Administration (FAA) investigations when such data are in the FAA's possession and the data will facilitate the individual's ability to participate in a proceeding related to an FAA investigation. Some “air traffic data” are in the possession of government contractors providing operational services to the FAA. This notice specifies how and where an airman may request the FAA's assistance in seeking “air traffic data” from government contractors.
On August 3, 2012, the Pilot's Bill of Rights, Public Law 112-153, was enacted. The PBR requires that the FAA notify an individual who is the subject of an investigation relating to the approval, denial, suspension, modification, or revocation of an airman certificate of certain information regarding the investigation. Among other things, the PBR requires the FAA to inform the individual that he or she “is entitled to access or otherwise obtain air traffic data.” The FAA may delay in providing such notification if it is determined that such notification “may threaten the integrity of an investigation.”
The PBR defines “air traffic data” in the possession of the FAA to include (i) relevant air traffic communication tapes; (ii) radar information; (iii) air traffic controller statements; (iv) flight data; (v) investigative reports; and (vi) any other air traffic or flight data in the FAA's possession that would facilitate the individual's ability to productively participate in a proceeding related to the investigation. The PBR recognizes that some air traffic data are in the possession of government contractors, not the FAA. The PBR provides that an individual—who is the subject of an FAA investigation related to the approval, denial, suspension, modification, or revocation of an airman certificate—is entitled to obtain air traffic data that are “government contractor air traffic data” that would assist the individual in participating in a proceeding related to such an investigation. The PBR provides that such an individual can request that the FAA obtain air traffic data from a government contractor providing operational services to the FAA, including control towers and flight service stations. Under the law, when the FAA requests such data from a government contractor and when the contractor provides the data to the FAA, the FAA is required to transmit the data obtained from the contractor to the individual described above.
Shortly, the FAA's Internet Web page (
Because of the costs associated with storing air traffic data, much of it is destroyed or otherwise disposed of within a few days or weeks after it is generated. For an individual's request to be meaningful, it must be expeditiously received by the FAA at a centralized location by FAA personnel who are trained to process such requests, and then it must be submitted to the government contractors before those contractors destroy or otherwise dispose of air traffic data in the normal course of business. FAA personnel who are knowledgeable about government contractors that provide operational services to the FAA (including control towers and flight service stations) will check for submissions made to
The PBR requires that when an individual who is the subject of an FAA investigation relating to an airman certificate requests air traffic data that are in the possession of a government contractor that provides operational services to the FAA (including control towers and flight service stations), the individual must: (1) Describe the facility at which such information is located; and (2) identify the date on which the information was generated.
Because government contractors may have a tremendous amount of air traffic data, it is important for the individual to provide as much detail as possible regarding the air traffic data being sought. Such things about the aircraft operation as the local time of day, the heading of the aircraft, and its altitude will increase the chances that the appropriate data can be located, retrieved, preserved, and transmitted in accordance with the requirements of the Pilot's Bill of Rights.
Federal Aviation Administration (FAA), DOT.
Notice of Commercial Space Transportation Advisory Committee Open Meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a meeting of the Commercial Space Transportation Advisory Committee (COMSTAC). The meeting will take place on Tuesday, October 9, 2012, from 8:00 a.m. to 5:00 p.m., and Wednesday, October 10, 2012, from 8:30 a.m. to 2:15 p.m., at the National Housing Center, 1201 15th Street NW., Washington, DC, 20005. This will be the 56th meeting of the COMSTAC.
The proposed agenda for October 9 features meetings of the working groups as follows:
The proposed agenda for October 10 features:
Interested members of the public may submit relevant written statements for the COMSTAC members to consider under the advisory process. Statements may concern the issues and agenda items mentioned above and/or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact Susan Lender, DFO, (the Contact Person listed below) in writing (mail or email) by October 1, 2012, so that the information can be made available to COMSTAC members for their review and consideration before the October 9 and 10, 2012, meetings. Written statements should be supplied in the following formats: One hard copy with original signature and/or one electronic copy via email.
Subject to approval, a portion of the October 10th meeting will be closed to the public (starting at approximately 3:00 p.m.).
An agenda will be posted on the FAA Web site at
Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting.
Susan Lender (AST-100), Office of Commercial Space Transportation (AST), 800 Independence Avenue SW., Room 331, Washington, DC 20591, telephone (202) 267-8029; Email
U.S. Federal Highway Administration (FHWA), DOT.
Notice of Withdrawal of the Notice of Intent to prepare an EIS for Sheep Mountain Parkway Multimodal Transportation Project, which includes highway, transit, and non-motorized trail components in Clark County, Nevada.
The FHWA is issuing this notice to advise the public that, effective immediately, the Notice of Intent (NOI) (
For the Federal Highway Administration: Mr. Abdelmoez Abdalla, Environmental Program Manager, Federal Highway Administration, 705 N. Plaza, Suite 220, Carson City, NV 89701, Telephone: 775-687-1231, email:
The FHWA, in cooperation with the Nevada Department of Transportation, the Regional Transportation of Southern Nevada, and the City of Las Vegas (City) will not pursue the development of an EIS for the Sheep Mountain Parkway. The purpose of the proposed project was to accommodate travel demands resulting from existing and planned development in the northern Las Vegas Valley by considering multimodal transportation facilities. Based on a number of external issues affecting the completion of the Sheep Mountain Parkway EIS, the City has decided not to pursue the project as originally envisioned at this time. The City plans to pursue only the western portion of Sheep Mountain Parkway extending from Fort Apache Road to Clark County 215 (CC-215). The City will initiate the National Environmental Policy Act (NEPA) activities with the Bureau of Land Management as the Lead Agency to secure the additionally needed right-of-way.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and Other Federal Agencies.
This notice announces actions taken by the FHWA and other Federal Agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, State Route 18 (Bluff Street); from St. George Boulevard to Red Hills Parkway, in Washington County in the State of Utah. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the FHWA and other Federal agency actions on the highway project will be barred unless the claim is filed on or before February 24, 2013. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.
For FHWA: Mr. David Cox, Design Program Manager, Federal Highway Administration, 2520 West 4700 South, Suite 9A, Salt Lake City, Utah 84129; telephone (801) 955-3516; email:
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of Utah: Bluff Street; St. George Boulevard to Red Hills Parkway in the city of St. George, Washington County, Utah. The project will include widening of Bluff Street to seven lanes from St. George Boulevard to 500 North; continuous shoulder, sidewalk, and curb and gutter from St. George Boulevard to Red Hills Parkway; a median U-turn intersection at St. George Boulevard; and a jug-handle underpass intersection at Sunset Boulevard. The project will accommodate future (2040) travel demand on Bluff Street mainline and at the St. George Boulevard and Sunset Boulevard intersections. The actions by the FHWA and other Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) for the project, approved on January 25, 2012, in the FHWA Finding of No Significant Impact (FONSI) issued on July 24, 2012, and in other documents in the FHWA project files. The EA, FONSI, and other project records are available by contacting the FHWA or the UDOT at the addresses provided above. The FHWA EA and FONSI can be viewed and downloaded from the project Web site at
This notice applies to all FHWA and other Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1.
2.
3.
4.
5.
6.
7.
23 U.S.C. 139(l)(1).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval. FMCSA requests approval to revise an ICR entitled, “Annual Report of Class I and Class II Motor Carriers of Property (formerly OMB 2139-0004),” which is used to ensure that motor carriers comply with FMCSA's financial and operating statistics requirements at chapter III of title 49 CFR part 369 entitled,
Please send your comments by September 27, 2012. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2012-0031. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Ms. Vivian Oliver, Transportation Specialist, Office of Information Technology, Operations Division, Department of Transportation, Federal Motor Carrier Safety Administration, West Building 6th Floor, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-2974; email Address:
The Annual Report of Class I and Class II Motor Carriers of Property (Form M) is a mandated reporting requirement for all for-hire motor carriers (See 49 U.S.C. 14123; and implementing FMCSA regulations at 49 CFR part 369). Motor carriers (including interstate and intrastate) subject to the Federal Motor Carrier Safety Regulations are classified on the basis of their gross carrier operating revenues.
Under the Financial and Operating Statistics (F&OS) program, FMCSA collects from Class I and Class II property carriers balance sheet and income statement data along with information on safety needs, tonnage, mileage, employees, transportation equipment, and other related data. FMCSA may also ask carriers to respond to surveys concerning their operations. The data and information collected would be made publicly available and used by FMCSA to determine a motor carrier's compliance with the F&OS program requirements prescribed at chapter III of title of 49 CFR part 369.
The regulations were formerly administered by the Interstate Commerce Commission and later transferred to the Secretary on January 1, 1996, by section 103 of the ICC Termination Act of 1995 (Pub. L.104-88, 109 Stat. 803 (Dec. 29, 1995)), now codified at 49 U.S.C. 14123. On September 30, 1998, the Secretary delegated and transferred the authority to administer the F&OS program to the former Bureau of Transportation Statistics (BTS), now part of the Research and Innovative Technology Administration (RITA), to former chapter XI, subchapter B of 49 CFR part 1420 (63 FR 52192).
On September 29, 2004, the Secretary transferred the responsibility for the F&OS program from BTS to FMCSA in the belief that the program was more aligned with FMCSA's mission and its other motor carrier responsibilities (69 FR 51009). On August 10, 2006, the Secretary published a final rule (71 FR 45740) that transferred and redesignated certain motor carrier financial and statistical reporting regulations of BTS, that were formerly located at chapter XI, subchapter B of title 49 CFR part 1420, to FMCSA under chapter III of title 49 CFR part 369.
You are asked to comment on any aspect of this information collection, including: (1) Whether the proposed collection is necessary for the FMCSA to perform its functions; (2) the accuracy of the estimated burden; (3) ways for FMCSA to enhance the quality, usefulness, and clarity of the collected information; and (4) ways that the burden could be minimized without reducing the quality of the collected information.
Federal Motor Carrier Safety Administration, DOT.
Notice; response to comments.
The Federal Motor Carrier Safety Administration (FMCSA) announces changes to the Carrier Safety Measurement System (SMS). A preview of the original improvements became available to motor carriers and law enforcement on March 27, 2012, and will remain available until the SMS changes become operational. The SMS improvements are now scheduled to be operational in December 2012. Comments to the preview were reviewed and considered. This notice explains the Agency's modifications to the changes announced in March and describes four additional changes that will be implemented in December.
These improvements are scheduled to be operational in December 2012.
You may submit comments identified by Federal Docket Management System Number FMCSA-2004-18898 by any of the following methods:
•
•
•
•
To avoid duplication, please use only one of these four methods. See the “Public Participation” heading under the
Mr. Bryan Price, Federal Motor Carrier Safety Administration, 1000 Liberty Avenue, Suite 1300, Pittsburgh, PA 15222, Telephone 412-395-4816, E-Mail:
Comments regarding the improvements outlined in this Notice were originally collected under Docket Identification Number FMCSA-2012-0074. To avoid confusion and ensure consistency, FMCSA is moving to a single CSA docket. FMCSA's CSA docket (FMCSA-2004-18898) will remain open to accept comments on the SMS methodology, and will remain open when the improvements outlined in this notice become operational in December.
If you submit a comment, please include docket number FMCSA-2004-18898. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comments online, go to
FMCSA will consider all comments and material received and may undertake future modifications of SMS based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
All comments received will be posted without change to
FMCSA's enforcement and compliance programs are making America's roads safer. CSA is FMCSA's new enforcement and compliance program and has been operational since December 2010. An overview of CSA is available in the March 27, 2012,
SMS uses all available inspection and crash data to prioritize carriers for interventions. SMS quantifies on-road safety performance of carriers to identify the specific safety problems the carrier exhibits and to monitor whether performance is improving or worsening. SMS helps FMCSA more efficiently apply its resources and to bring carriers and drivers into compliance with Federal safety regulations and prevent crashes, saving lives.
The Agency has found that SMS is an effective tool for identifying those carriers with future safety and compliance issues. For example, the SMS has sufficient data to assess 200,000 of the 525,000 active carriers in FMCSA's data systems in a BASIC. Those 200,000 carriers are involved in 92% of the crashes reported to FMCSA. Both FMCSA and an independent evaluator, the University of Michigan Transportation Research Institute (
FMCSA's CSA Web site (
• Informational factsheets on various aspects of CSA, including SMS;
• Presentations used to deliver information to the industry regarding CSA in general and the SMS methodology;
• The operational version of the SMS Methodology along with the proposed version released in March 2012;
• Various studies conducted on SMS's effectiveness; among other educational resources.
FMCSA is continuously listening to stakeholder feedback and researching and analyzing ways to improve its programs. The SMS changes proposed in March reflect that work. FMCSA is committed to a thoughtful, methodical, and transparent process to ensure that the SMS continues to support the Agency's critical safety mission.
In total, the SMS changes being implemented in December more effectively identify and prioritize motor carriers for intervention to reduce commercial motor vehicle crashes and HM incidents. Motor carriers identified as exceeding the intervention threshold in any BASIC under the revised methodology have a 3.9% greater future crash rate and 3.6% greater future HM violation rate than those previously identified for intervention using the existing SMS methodology. Details regarding this analysis of motor carriers exceeding the intervention thresholds as well as high risk motor carrier identification is posted on the CSA Web site at (
FMCSA provided detailed descriptions of the following planned changes to the SMS in a
• Strengthening the Vehicle Maintenance BASIC by incorporating cargo/load securement violations from today's Cargo-Related BASIC;
• Changing the Cargo-Related BASIC to the Hazardous Materials (HM) BASIC to better identify HM-related safety and compliance problems;
• Better aligning the SMS with Intermodal Equipment Provider (IEP) regulations;
• Aligning violations that are included in the SMS with Commercial Vehicle Safety Alliance (CVSA) inspection levels by eliminating vehicle violations derived from driver-only inspections and driver violations from vehicle-only inspections;
• More accurately identifying carriers that transport significant quantities of HM; and
• More accurately identifying carriers involved in transporting passengers.
In addition, FMCSA described changes to the display of information on the SMS Web site (
• Change current terminology, including the terms “Insufficient Data” and “Inconclusive,” to fact-based definitions that clarify the carrier's status in each BASIC; and
• Distinguish between crashes with injuries and crashes with fatalities.
FMCSA is implementing the above-mentioned changes to SMS in December 2012, with two notable modifications. First, in response to public comments expressing concern about the HM BASIC, it will not be made available to the public for one year. Instead, only motor carriers and law enforcement personnel that log into FMCSA systems will be able to view percentile ranks in the HM BASIC. This one year time period will allow the Agency to further study and refine the BASIC prior to making it available to the public. Second, the HM BASIC will be named the HM Compliance BASIC.
In addition to the changes outlined above, FMCSA is providing notice of four more changes based on careful consideration of comments received and stakeholder feedback. In short, the Agency is proposing these changes: to remove speeding violations that are 1 to 5 miles per hour (mph) over the speed limit; to lower the severity weight from 5 to 1 for speeding violations that do not designate MPH range above the speed limit; to make the severity weights associated with electronic and paper logbook violations the same; and to change the name of the Fatigued Driving (Hours-of-Service (HOS)) BASIC to the Hours-of-Service (HOS) Compliance BASIC. Comments to these additional changes can be made to the original CSA docket (FMCSA-2004-18898). Users of the SMS Preview Web site should be aware the four additional changes will not be incorporated in the SMS Preview Web site and will become visible upon going operational in December.
In the current SMS, the Unsafe Driving BASIC uses all speeding violations regardless of the range exceeding the speed limit. FMCSA is removing commercial motor vehicle speeding violations in the 1 to 5 mph over the speed limit range from SMS. Current speedometer regulations (49 CFR 393.82) only require accuracy within 5 mph. This change therefore aligns SMS with the regulatory requirement. Once implemented, the Unsafe Driving BASIC will not include any speeding violations that fall into the 1 to 5 mph over the speed limit range regardless of when the inspection occurred. This change applies to the prior 24 months of data used by SMS and all SMS data moving forward.
In the current SMS, the Unsafe Driving BASIC applies a severity weight of 5 to general speeding violations that do not specify the range exceeding the speed limit. FMCSA is reducing the severity weight for general speeding violations (49 CFR 392.2S) to 1 for those violations occurring on or after January 1, 2011. This is the date when inspectors had access to updated roadside inspection software, ASPEN, to record violations broken out by mile per hour categories above the speed limit. After the changes are implemented in December, the following severity weights will apply to recorded speeding violations:
In the current SMS, hours-of-service form and manner violations have different weights for paper (weight of 2) and electronic form and manner logbook (weight of 1) violations. FMCSA is now equally weighting paper and electronic logbook form and manner violations with a severity weight of 1 for consistency purposes. In addition, the current SMS assigns a severity weight of 5 to paper log violations having to do with a driver not having a log book but only a severity weight of 1 for similar violations of electronic logbooks. With these changes, all violations related to not having a logbook, electronic or paper, will have a severity weight of 5.
Upon careful review of comments concerning the proposed SMS changes and stakeholder feedback, FMCSA is changing the name of the Fatigued Driving (HOS) BASIC to the Hours of Service (HOS) Compliance BASIC. This action is being taken to reflect that the BASIC includes violations such as “form and manner” and “logbook not current” that, by themselves, do not necessarily indicate fatigued driving or driving in excess of allowable hours.
The Agency received 118 unique comment submissions to the March notice, mostly from drivers, carriers, and industry associations. Of the 118 submissions, no single topic drew responses from a majority of the commenters and many of the submissions addressed more than one topic. Below is a synopsis of the comments received and the Agency's responses.
Several commenters, including OOIDA, Bison Transport, Inc. and Q-Line Trucking, proposed that cargo/load securement violations should be compared by group—flatbed or open trailer—not all together in the Vehicle Maintenance BASIC.
The American Trucking Association (ATA) supports the proposed enhancement but suggested changing the name of the Vehicle Maintenance BASIC to reflect the additional violations being included.
By moving load securement violations to the Vehicle Maintenance BASIC and recalibrating the severity weights, FMCSA has mitigated the known bias created by information system limitations; ensured that the carriers with a pattern of load securement violations are still identified; and strengthened the Vehicle Maintenance BASIC by improving the identification of carriers with the highest future crash rates.
In addition, the FMCSA has determined that the Unsafe Driving BASIC is not an appropriate place to house the cargo securement violations. The Vehicle Maintenance BASIC is focused on the physical condition of the vehicle, of which the cargo is a part, whereas the Unsafe Driving BASIC is focused on how the vehicle is being driven (e.g. improper lane change, speeding). Further, the Vehicle Maintenance BASIC is normalized by number of inspections, whereas the Unsafe Driving BASIC is normalized by on-road exposure measured by Power Units (PU) and Vehicle Miles Traveled (VMT). The Agency continues to believe that the number of inspections is a more appropriate normalization factor for cargo securement violations, and, therefore, will include the cargo securement violations in the Vehicle Maintenance BASIC. The Agency does not plan to change the name of the Vehicle Maintenance BASIC with this set of enhancements.
FMCSA acknowledges there would be advantages to comparing cargo/load securement violations by group, e.g. flatbed or open trailer. However, at this time FMCSA does not have access to reliable, consistent data to allow us to make these determinations.
The first step in the development of the HM Compliance BASIC was an examination of carrier and shipper violations to make a determination of which violations should be accountable to the carrier. The Agency, including subject matter experts, determined that the violations outlined in Appendix A of the SMS Methodology are to be included in the HM Compliance BASIC
The intervention threshold in this BASIC will be set at 80% for all carriers. Analysis done on the effectiveness of this BASIC shows that carriers above the intervention threshold have future HM violation rates more than 15% higher than carriers above the threshold in the current Cargo-Securement BASIC.
However, in consideration of the comments related to the HM Compliance BASIC FMCSA will refrain from displaying this BASIC to the public until December 2013. During this time, the HM Compliance BASIC will be utilized as an enforcement prioritization tool, and its effectiveness in identifying non-compliant HM carriers will be further analyzed.
The Agency recognizes that different carriers haul various quantities of HM. Therefore, the Agency plans to display the percentage of HM placardable inspections for a carrier to provide context to inspections and violations displayed on SMS.
Analysis conducted on the HM Compliance BASIC indicates that the motor carriers over the 80th percentile intervention threshold in this BASIC had slightly fewer inspections where a placardable quantity of HM was on board, but more HM inspections with violations, which means it better identifies the carriers in non-compliance. A detailed description of this analysis is also available on the CSA Web site at
By implementing the HM Compliance BASIC for enforcement purposes, carriers that are not in compliance by properly packaging, transporting, accurately identifying, and communicating hazardous cargo in the event of a crash or spill are being identified.
Each BASIC measures a different area of performance and compliance. Substantial compliance and good performance in the other BASICs does not necessarily translate into proper safety management practices and compliance with the HM Regulations. Therefore, it is possible for a carrier to have strong safety management practices in all other BASICs, while demonstrating poor performance in the HM Compliance BASIC. However, FMCSA analysis indicates that nearly half of the motor carriers above the 80th percentile intervention threshold in the HM BASIC are also above threshold in at least one other BASIC.
Under 49 CFR Part 390.40, when a motor carrier's driver agrees to haul equipment from an IEP, the driver is required to determine if the IEP trailer is in safe condition. With this change implemented, those violations that should be found during pre-trip inspections will be included in a motor carrier's SMS in order to better identify carriers with compliance issues.
IEPs are not included in the SMS because they have different operations than a motor carrier, and it would not be accurate to compare them to motor carrier operations in SMS. FMCSA may consider a measurement system for IEPs in the future. Therefore, violation data collected during inspections performed today, may eventually be used in a measurement system for IEPs.
A description of what is examined for each inspection level is described on the FMCSA Web site:
• Any violation may be cited on a level 1, 2, 4 or 6 inspection
• Level 3 (driver-only) inspections only include driver violations, which are those violations that are included in the Unsafe Driving, Fatigued Driving (HOS) (being renamed HOS Compliance), and Driver Fitness BASICs
• Level 5 (vehicle-only) inspections only include the violations associated with Vehicle Maintenance, current Cargo-Related (changing to HM Compliance) BASICs
These violations, by BASIC, can be found in the Version 3.0 SMS Methodology document, Appendix A
The definition of carriers subject to the lower HM Intervention threshold is being revised in December to ensure the carriers are hauling a sizeable amount of HM placardable quantities before being subject to the more stringent intervention thresholds. Under the new criteria, a motor carrier will be subject to the lower HM intervention thresholds when they have:
1. At least two inspections on a vehicle transporting HM requiring placards, within the past 24 months, with one inspection occurring within the past 12 months; and
2. At least five percent of the motor carrier's total inspections involve a vehicle transporting HM requiring placards; OR
3. An FMCSA HM safety permit.
FMCSA had originally proposed to also subject carriers to the lower HM intervention thresholds if an investigation within the last 24 months had identified them as a carrier that transported placarded quantities.
FMCSA analysis indicates that prior crashes, regardless of a carrier's role in a crash, are a good predictor of future crash involvement. Therefore, FMCSA continues to use the Crash Indicator for internal prioritization purposes, while continuing to hide the percentile from public view. However, FMCSA recognizes that additional crash data might further sharpen the ability of the SMS to identify carriers that pose the highest risk. Accordingly, on July 23, 2012, the Agency announced it is conducting a comprehensive analysis to identify a process for determining a carrier's role in a crash and including that determination in the SMS. More information on this issue is available at
Some commenters, including ATA and Schneider National, agree with providing a preview for carriers to understand how proposed changes will affect their SMS percentiles and to address any safety issues that may be identified before the changes go public. OOIDA and the Alliance for Safe, Efficient, and Competitive Truck Transportation (ASECTT) believe that the creation of and any changes to SMS need to go through a notice and comment rulemaking under 49 U.S.C. 31144(b).
The Agency is, however, developing a notice of proposed rulemaking (NPRM) that would propose the use of SMS data in making safety fitness determinations. The NPRM will solicit comments on this particular issue.
In order to ensure transparency in the development and enhancements of SMS, the Agency plans to issue changes at periodic intervals and to provide enforcement personnel and carriers the opportunity to preview the changes prior to implementation. FMCSA will continue to seek comments and consider them before completing implementation of changes.
FMCSA received many comments about aspects of the CSA program that did not concern the proposed changes to SMS and are therefore beyond the scope of this notice. These topics include, among other things, the general status of CSA, the correlation between BASIC scores and future crash risk, a perception of effects on small businesses, the Utilization Factor (UF) that gives carrier credit for the extra exposure that results from making high utilization of trucks, training of enforcement officers, violation weightings, the Driver SMS (DSMS),
While these topics are beyond the scope of this notice, FMCSA intends to respond to these comments through the Frequently Asked Questions (FAQs) on FMCSA's Web site. FMCSA will provide also these topics to the MCSAC subcommittee that will provide the Agency recommendations on CSA for their consideration.
Changes outlined in this notice will be implemented in December 2012.
As mentioned throughout this notice, FMCSA plans to periodically develop enhancements to SMS, make them available for preview to law enforcement and motor carriers, and collect comments. The next set of packaged enhancements is under development. The Agency is examining the following: comprehensive modifications to roadside violation severity weights, recalibration of the Utilization Factor used to incorporate VMT for the Crash Indicator and Unsafe Driving BASIC, and adjustments to safety event groups in all BASICs.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Unified Carrier Registration Plan Board of Directors Meeting.
The meeting will be held on September 6, 2012, from 12:00 noon to 3:00 p.m., Eastern Standard Time.
This meeting will be open to the public via conference call. Any interested person may call 1-877-820-7831, passcode, 908048 to listen and participate in this meeting.
Open to the public.
The Unified Carrier Registration Plan Board of Directors (the Board) will continue its work in developing and implementing the Unified Carrier Registration Plan and Agreement and to that end, may consider matters properly before the Board.
Mr. Avelino Gutierrez, Chair, Unified Carrier Registration Board of Directors at (505) 827-4565.
Federal Transit Administration (FTA), DOT.
Notice of availability of final Circular.
The Federal Transit Administration (FTA) has placed in the docket and on its Web site, guidance in the form of a Circular to assist grantees in complying with Title VI of the Civil Rights Act of 1964. The purpose of this Circular is to provide recipients of FTA financial assistance with instructions and guidance necessary to carry out the U.S. Department of Transportation's Title VI regulations (49 CFR part 21).
For program questions, Amber Ontiveros, Office of Civil Rights, Federal Transit Administration, 1200 New Jersey Ave. SE., Room E54-422, Washington, DC 20590, phone: (202) 366-4018, fax: (202) 366-3809, or email,
This notice provides a summary of the final changes to the Title VI Circular and responses to comments. The final Circular itself is not included in this notice; instead, an electronic version may be found on FTA's Web site, at
FTA is updating its Title VI Circular, last revised in 2007, to clarify what recipients must do to comply with the U.S. Department of Transportation (DOT) Title VI regulations. This notice provides a summary of changes to FTA Circular 4702.1A, “Title VI and Title VI—Dependent Guidelines for FTA Recipients,” addresses comments received in response to the September 29, 2011,
FTA conducted extensive outreach related to the proposed circular. FTA sponsored Information Sessions in five cities around the country regarding the proposed revisions to the Title VI Circular and proposed a new Environmental Justice Circular (see docket FTA-2011-0055 for more information on the proposed and final Environmental Justice Circular). The meetings provided a forum for FTA staff to make presentations about the two proposed circulars and allowed attendees an opportunity to ask clarifying questions. In addition, FTA participated in various conferences occurring in October and November 2011, and hosted several webinars. FTA received approximately 117 written comments to the docket related to the proposed Title VI Circular from providers of public transportation, State Departments of Transportation, advocacy groups, individuals, metropolitan planning organizations, and transit industry groups. Some comments were submitted on behalf of multiple entities.
One important change to the revised Circular involves removal of several references to environmental justice (EJ) contained in FTA Title VI Circular 4702.1A. Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” was signed by President Clinton on February 11, 1994. Subsequent to issuance of the Executive Order, DOT issued an internal Order for implementing the Executive Order, which DOT recently updated. The DOT Order (Order 5610.2(a), “Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 77 FR 27534, May 10, 2012) describes the process the Department and its modal administrations (including FTA) will use to incorporate EJ principles into programs, policies and activities. The DOT Order does not provide guidance to FTA grantees on what is expected regarding integrating EJ principles into the public transportation decision-making process. FTA had not previously published separate and distinct EJ guidance for its grantees, but instead included EJ concepts in Title VI Circular 4702.1A.
Several instances of Title VI and EJ issues raised by FTA grantees led FTA to initiate a comprehensive management review of the agency's core guidance to grantees in these and other areas of civil rights responsibilities for public transportation. Based on that review, FTA determined a need to clarify and distinguish what grantees should do to comply with Title VI regulations; and, separately, what grantees should do to facilitate FTA's implementation of Executive Order 12898.
Given the above, FTA removed most references to environmental justice from the final Title VI Circular 4702.1B in order to clarify the statutory and regulatory requirements for compliance with Title VI. In addition to the revised Title VI Circular, FTA has also published, in the July 17, 2012,
A number of commenters had questions about the timing of implementing the new circular, including which circular they should use if their Title VI Program is due within a short time of the effective date of the new circular, and whether Title VI Programs would have to be updated to comply with new requirements.
Recipients with Title VI Programs due to expire prior to October 1, 2012 must submit their Programs to FTA prior to October 1, 2012, and the Programs shall be compliant with Circular 4702.1A. Recipients with Title VI Program expiration dates between October 1, 2012 and March 31, 2013 must submit a Title VI Program that is compliant with Circular 4702.1B by April 1, 2013. This grace period will allow recipients to update their system-wide standards and policies, as well as their major service change and disparate impact policies, as applicable, and have their board of directors or appropriate entity or official(s) responsible for policy decisions approve the Title VI Program prior to submission. On or about October 1, 2012, FTA will post information on our Title VI web page regarding which recipients are in this group, and we will also reach out to each recipient to ensure awareness of the requirement. In addition, FTA will adjust the expiration dates of all Title VI Programs in order to provide for an orderly, staggered submission of Title VI Programs. On or about October 1, 2012, FTA will publish information on our Web page related to future due dates and expiration dates of Title VI Programs.
The final Circular requires all fixed route transit providers to set system-wide standards and policies, and requires all transit providers that operate 50 or more fixed route vehicles in peak service and are located in an urbanized area of 200,000 or more in population to establish major service change and disparate impact policies. These standards and policies must be approved by the board of directors or appropriate governing entity or official(s) responsible for policy decisions. As stated above, fixed route transit providers with Title VI Programs expiring between October 1, 2012, and March 31, 2013, will be provided a grace period in which to submit Title VI Programs that comply with the new Circular 4702.1B, and this will include updating or establishing these standards and policies. All other fixed route transit providers will be required to establish or update their standards and policies and submit them into TEAM by March 31, 2013. In addition, Title VI Programs due to expire on or after April 1, 2013 must comply with the reporting requirements of Circular 4702.1B and therefore will need to include their new or updated system-wide standards and policies in their next Title VI Program submission.
Providers of public transportation that operate 50 or more fixed route vehicles in peak service and are located in an urbanized area of 200,000 or more in population are required to conduct service equity analyses for major service changes. Transit providers with major service changes scheduled between October 1, 2012 and March 31, 2013 may follow the service equity analysis guidance provided in FTA Circular 4702.1A. FTA acknowledges that major service changes are often planned many months in advance, and transit providers may have already begun to conduct equity analyses for upcoming changes. In addition, the new circular requires a public participation process and board of directors approval for defining major service changes and adopting a disparate impact policy, as well as board approval of the analysis; these processes will take time. A transit provider may conduct a service equity analysis consistent with the new Circular for major service changes occurring prior to April 1, 2013, but is not required to do so. All major service changes occurring on or after April 1, 2013 must be analyzed with the framework outlined in the new Circular, 4702.1B.
Providers of public transportation that operate 50 or more fixed route vehicles in peak service and are located in an urbanized area of 200,000 or more in population are required to collect and report demographic data through customer surveys at least once every five years (see chapter IV, section 5b). Transit providers that have not conducted passenger surveys in the last
FTA will conduct ongoing training through webinars and in-person presentations in order to ensure recipients and subrecipients understand the requirements of the new circular.
This section addresses comments that were not directed at specific chapters, but to the Circular as a whole.
A number of commenters made suggestions or recommendations that were outside the scope of the circular, for example, suggestions related to meeting obligations to affirmatively further fair housing, questions related to specific situations, and others. Some commenters asked about other protected classes, specifically the prohibition of discrimination on the basis of age, sex and disability. There are nondiscrimination statutes for all of those areas, but they are not part of Title VI. Title VI prohibits discrimination on the basis of race, color, and national origin only. All comments such as these are beyond the scope of this Circular and are not addressed here.
Commenters were generally supportive of FTA's proposal to develop separate Circulars for Title VI and environmental justice, and also supportive of the changes FTA proposed to FTA Title VI Circular 4702.1A. Some commenters were concerned about the volume of new material, with the addition of appendices to Title VI Circular 4702.1B, while others expressed concern about the costs of implementation. The appendices, while voluminous, are designed to make it easier for recipients to comply with Title VI requirements, as they demonstrate acceptable analyses and provide examples of what FTA expects. As noted in Chapter IV of the chapter-by-chapter analysis, we have addressed the cost concerns by amending the proposed threshold for the more comprehensive Title VI reporting requirements for transit providers, amending the survey requirement, and amending the number of transit amenities that must be monitored.
One important change made throughout the final Circular is that we have, where applicable, included the text of the DOT Title VI regulation that applies to the requirement. FTA Title VI Circular 4702.1A often cites the regulation, but does not quote or summarize the text. Commenters agreed it is an enhancement to include the text or a summary of the regulation so they understand the nexus between the regulation and the requirements in the Circular.
Some commenters made suggestions about language choice, such as being careful about the usage of “should” and “shall” in order to distinguish between recommended and required actions. FTA has reviewed the final Circular and made revisions as appropriate. Some commenters suggested that FTA use the phrase “in a non-discriminatory manner” instead of the phrase “without regard to race, color, or national origin,” as the second phrase, while consistent with the regulation, implies that if a recipient makes decisions without regard to race, color, or national origin, there may be a discriminatory effect. FTA has carefully reviewed the final Circular and determined that the use of these phrases depends on the context. We have made revisions where appropriate.
Several commenters stated that FTA should coordinate or collaborate with the Federal Highway Administration (FHWA) to ensure one set of requirements, especially for metropolitan planning organizations (MPOs) and State Departments of Transportation that receive funds from both agencies. FTA and FHWA are working to identify common reporting requirements so that States and MPOs need only submit information once that will satisfy FTA and FHWA requirements.
One commenter asserted that Federal agencies lack the authority to implement regulations prohibiting disparate impact, and that FTA should be reassessing the implementation of DOT's Title VI regulation. Specifically, the commenter pointed out that the U.S. Supreme Court in
Chapter I of Circular 4702.1A is entitled, “How to Use This Circular.” The content of this chapter has been eliminated or moved to other chapters as appropriate. Some commenters expressed a preference for keeping the reference chart found in Chapter 1 of Circular 4702.1A; FTA has determined that the Table of Contents is sufficient for directing readers to the information applicable to their entity (i.e., transit provider, State, or MPO). Chapter I of the final Circular 4702.1B is an introductory chapter covering general information about FTA, how to contact us, the authorizing legislation for FTA programs generally, information about FTA's posting of grant opportunities on Grants.gov, definitions applicable to the Title VI Circular, and a brief history of environmental justice and Title VI. We have moved the table describing similarities and differences between Title VI and environmental justice, found in Appendix M of the proposed circular, to this chapter. Where applicable, we have used the same definitions found in rulemakings, other Circulars, and DOT Orders to ensure consistency.
Some commenters noted that low-income populations are not a protected class and thus references to low-income should be removed from the Title VI Circular. FTA has retained the references to low-income populations only in the service and fare equity analysis section in Chapter IV. Addressing low-income populations in these analyses assists FTA in meeting its obligation to identify and address environmental justice concerns. Further, FTA received many comments to the proposed EJ Circular regarding whether the EJ Circular required a separate analysis on service and fare equity from that required under Title VI. FTA considered these comments and decided that issues related to service and fare equity analyses should be consolidated in a single location in the final Title VI Circular. Consolidating FTA's guidance on service and fare equity analyses in the Title VI Circular will provide clarity to recipients and prevent duplication of efforts.
In the final circular, in response to commenters as well as experiences over the past year, FTA has removed from the Circular the definitions of adverse effect and disproportionate high and adverse effect, which are environmental justice terms. Instead, we have included a definition of “disproportionate burden,” and applied this term to service and fare equity analyses for low-
We have modified the definition of “disparate impact” for clarity. We decline to add a definition for “equity” or “service” in the definitions section, but we have added significant text in Chapter IV (as discussed below) to more clearly describe the steps in a service equity analysis. Some commenters indicated that FTA's definition of “Limited-English Proficient,” (LEP) which includes individuals who speak English less than very well, not well, or not at all, was not consistent with the U.S. Census data. The Census Bureau explained to State and local governments in 2009 that LEP includes the “less than very well” category.
Several commenters noted possible inconsistencies with the definitions of “minority” and “minority populations,” which FTA did not propose changing. FTA has confirmed that the definition of “minority” included in the final Circular is the same definition used by the Office of Management and Budget (OMB), which provides that these categories are the minimum set for data on race for Federal civil rights compliance reporting.
Several commenters noted the definition for “low-income,” which FTA did not propose changing, was not consistent with other Federal agencies' definitions. The definition is the same definition DOT uses for purposes of addressing environmental justice concerns, so we have retained the existing definition in order to maintain consistency within the Department. However, recipients may use a more inclusive definition of low-income, e.g., 150% of poverty level, or incomes at a certain percentage of median household income, etc., if they choose, provided the threshold is at least as inclusive as the U.S. Department of Health and Human Services (HHS) poverty guidelines. A few commenters requested that FTA define the term “low-income transit route;” we have limited the application of “minority transit route” to service monitoring and are not using the definition for service equity analyses, so decline to provide a definition of low-income transit route. FTA has ensured that the definitions for “low-income,” “minority,” “low-income populations” and “minority populations” are the same in both the environmental justice and Title VI Circulars. Some commenters expressed a preference for identifying minority populations based on shared travel patterns rather than by living in geographic proximity. The definition of “minority populations” is a definition used in other DOT documents, notably the DOT Order on Environmental Justice, and we are retaining the definition for Departmental consistency. However, as explained in the service equity section, where recipients have ridership data, it may be more appropriate to conduct analyses on the basis of that data instead of residential Census data.
FTA received several comments on its proposal to reinstate the definition of “minority transit route,” a term removed during the 2007 Circular revision. We proposed some added flexibility to the definition, allowing recipients to base the determination on route mileage, demographics, or ridership. In response to comments, we have made clarifying changes to this definition. A “minority transit route” is one in which at least one-third of the revenue miles are located in a Census block or block group, or traffic analysis zone where the percentage minority population is greater than the percentage minority population in the service area. Recipients may supplement that data if they have ridership data and adjust route designations accordingly. For example, a commuter bus that picks up passengers in generally non-minority areas and then travels through predominantly minority neighborhoods but does not pick up passengers who live closer to downtown might be more appropriately classified as a non-minority route, even if one-third of the route mileage is located in predominantly minority Census tracts or block groups. On the other hand, a light rail line may carry predominantly minority passengers to an area where employment centers and other activities are located, but the minority population in the surrounding Census tracts or block groups does not exceed the area average. This route may be more appropriately classified as a minority transit route. Chapter IV of the Circular, as well as the appendices, includes information regarding the practical application of minority transit routes in service monitoring.
Some commenters had suggestions related to the definition of “predominantly minority area,” which FTA did not propose changing. The definition provides that a predominantly minority area is a geographic area, such as a neighborhood, Census tract, or traffic analysis zone, where the proportion of minority persons residing in that area exceeds the average proportion of minority persons in the recipient's service area. In response to comments, we have added the term Census block groups to the list of geographic areas, but note the definition uses the phrase “such as,” so the list is not exhaustive. Commenters asked that FTA allow recipients to define a predominantly minority area; the definition in the circular is consistent with the definition of minority transit route, and we prefer to maintain that consistency. Commenters suggested that the definition include neighboring geographic areas, but neighboring geographic areas would be independently evaluated against the minority population in the service area.
Several commenters asked whether section 5310 non-profit subrecipients are transit providers. For purposes of this circular, FTA considers section 5310 subrecipients to be transit providers. However, when a non-profit section 5310 subrecipient provides closed-door service to its own clients, FTA considers these operators to be demand-responsive providers and not subject to the requirements of Chapter IV. As subrecipients, these providers may adopt the Title VI Program of the primary recipient that passes funds through to them, or they may develop their own Title VI Program that is compliant with Chapter III. Note that some section 5310 subrecipients are public entities that provide fixed route service, and in that case, the provider will have to comply with Chapter IV.
As a result of a number of comments to the docket related to service standards and reporting thresholds, FTA is adding definitions for “demand response,” “fixed route,” and “non-profit.” Discussion of how these terms relate to service standards and reporting thresholds are included in the section describing the revisions to Chapter IV.
We proposed using the term “recipient” to mean any recipient, whether a direct recipient, a designated recipient, a primary recipient, or a subrecipient. Some commenters
A number of commenters stated that the definition of “service area,” which refers to the geographic area in which a transit agency is authorized to operate by “local laws” should instead refer to “its charter.” We have made this change. One commenter indicated that the definition seemed to exclude regional service areas that cross state lines; however, the definition covers several different scenarios and we believe this one is covered.
Finally, this chapter includes a section describing environmental justice that references the EJ Circular that FTA published in July, 2012. This section provides a permanent cross-reference to that guidance. Commenters were supportive of this section and stated the discussion was helpful. In addition, we have moved the chart that was in Appendix M of the proposed Circular to this chapter, in order to have all the environmental justice information in one place.
We proposed amending some of the content of this chapter. As previously stated, we moved the definitions to Chapter I. Chapter II starts with the Title VI program objectives found in Circular 4702.1A and is followed by statutory and regulatory authority, as well as additional authority for the policies, requirements and recommendations stated in the Circular. In response to comments, we have added language to section 2 following the discussion of the Civil Rights Restoration Act of 1987, stating that compliance with the Circular does not relieve the recipient from the requirements and responsibilities of DOT's Title VI regulation. In other words, the recipient may engage in activities not described in the Circular, such as regional information systems, one-call centers, ridesharing programs, or roadway incident response programs. FTA notes that the Civil Rights Restoration Act of 1987 clarified that Title VI includes all programs and activities of Federal aid recipients. The Circular only provides guidance on the transit-related aspects of an entity's activities. Recipients are responsible for ensuring that all of their activities are in compliance with the DOT Title VI regulation. Consistent with FTA's goal of separating Title VI and EJ and developing the EJ Circular, we removed references to environmental justice. We proposed moving the “determination of deficiencies” subsection in the Reporting Requirements section and the Determinations section to Chapter VIII, Compliance Reviews. FTA has adopted these changes in the final circular.
In the existing Reporting Requirements section, as well as in other places throughout Circular 4702.1A, there is a statement that recipients are required to submit Title VI Programs every three years, or every four years in the case of metropolitan planning organizations (MPOs) that are direct recipients of FTA funds. We proposed amending the reporting requirement so that all recipients are required to submit a Title VI Program every three years. Some MPOs objected to this proposal, stating their planning cycles are four-year cycles; however, FTA believes all recipients should report on the same three-year schedule for purposes of consistency. We proposed amending the Reporting Requirements section further by including a requirement that a recipient's board of directors or appropriate governing entity approve the Title VI Program before the recipient submits it to FTA. Most commenters agreed that this requirement would provide more accountability and awareness of Title VI requirements and compliance, while some stated this requirement would be time-consuming, onerous, and could over-politicize the Title VI Program, and requested alternatives, such as sign-off by a CEO or other official. FTA expects the requirement for board of directors or appropriate governing entity approval will add clarity and transparency to implementation of the Title VI Program at the local level, and we have adopted this proposal. We have clarified that the official(s) approving the Title VI Program should be the official(s) responsible for making policy decisions for the agency. We would note that a board of directors meeting is a public meeting, and approval of the Title VI Program in a public manner ensures the Title VI Program is a public document. Thus, having the Board chair and general manager jointly sign off on a Title VI Program, or delegating approval to an advisory committee, as suggested by some commenters, would not meet the transparency objective FTA is seeking. Recipients will be required to submit, with the Title VI Program, a copy of the Board resolution, meeting minutes, or similar documentation as evidence that the board of directors or appropriate governing entity has approved the program.
Several commenters stated there should be a public participation requirement in the development of the Title VI Program. FTA declines to make this a requirement; some elements of the Title VI Program, such as those related to service and fare equity analysis, require varying levels of public participation. In addition, as stated above, the new requirement that a Title VI Program be approved by officials responsible for policy decisions, such as a board of directors or equivalent entity, necessarily requires a public notification process, which FTA believes is sufficient.
Finally, in response to numerous questions and comments about contractors, we have added a section to this chapter regarding the applicability of the Circular to contractors. There were several questions about the difference between subrecipients and contractors, and the reporting responsibilities of each, and one request to provide a definition of contractor in the Circular. While both subrecipients and contractors “stand in the shoes” of the recipient, the reporting requirements are different. When a primary recipient passes funds through to a subrecipient, the subrecipient is responsible for developing its own Title VI Program, although it may adopt all or certain elements of the primary recipient's Title VI Program. In accordance with the DOT Title VI regulation, the subrecipient is also responsible for reporting its Title VI compliance to the entity from which it receives funds, and that entity must monitor the compliance of the subrecipient. A contractor, on the other hand, such as an entity that contracts with a city to provide transit service, does not develop its own Title VI Program; it complies with the recipient's Title VI Program, and the recipient ensures the contractor's compliance. This same principle applies to subcontractors—subcontractors must comply with the recipient's Title VI Program, they do not develop their own Title VI Programs. Because the term “contractor” has a generally accepted meaning, we decline to add a definition in the Circular.
Chapter III in Circular 4702.1A is “Requirements for Applicants.” We proposed eliminating the one-page chapter dedicated to applicants, and
We proposed keeping much of the content of Chapter IV of Circular 4702.1A in this chapter, but we reformatted the chapter to provide more clarity. Chapters III, IV, V and VI, which describe the specific requirements for different types of recipients' Title VI Programs, follow the same format. Each of these chapters starts with an introduction and some general information. Following that is the requirement to prepare and submit a Title VI Program. The section describing the Title VI Program, in each chapter, cites the regulation and includes the regulatory text or a summary of the regulatory text. It provides information on Board or other policy-making governing entity approval of the Title VI Program. It then lists the elements required in the Title VI Program for that type of recipient. The sections following the Title VI Program submission requirements describe in more detail what FTA expects, and provide direction to assist recipients with compliance. Commenters expressed support for the changes FTA made to the format of the Circular.
Section (4) of Chapter III outlines the basic requirements for submitting a Title VI Program, and provides the list of elements that must be in every recipient's (and subrecipient's) Title VI Program. Since Chapter III applies to all recipients, we include in this chapter information on how to upload a Title VI Program into FTA's Transportation Electronic Award Management (TEAM) system. The Title VI Program must be uploaded to TEAM no fewer than sixty calendar days prior to the date of expiration of the previously approved Title VI Program. This is a new requirement, but FTA has previously asked for voluntary submission of revised Title VI Programs thirty days in advance of expiration of the previously approved Title VI Program. As discussed in the Implementation plan, above, on or about October 1, 2012, FTA will post on its Web site information about each recipient's new “due date” and “expiration date.” Providing an orderly and staggered submission of Title VI Programs will enable FTA to review Title VI Programs more quickly and provide technical assistance as needed to ensure recipients are submitting Title VI Programs on which FTA can concur. This section also notes how the status of a recipient's Title VI Program will be noted in TEAM. The three status determinations are “concur,” “in review” and “expired.” This is a revision to our proposed determinations of “approval,” “conditional approval,” “pending,” and “expired.” This is a management tool that will allow FTA to more accurately determine when a Title VI Program is up-to-date. We proposed removing the “eliminating redundancy” subsection in the existing Circular, as we have determined that recipients must include all required information in each Title VI Program submission. One commenter objected to removal of this provision; we continue to believe that recipients must submit a complete Title VI Program every three years, even if there are elements that are unchanged.
We proposed continuing the reporting requirement exemption for the University Transportation Center Program, National Research and Technology Program, Over the Road Bus Accessibility Program and Public Transportation on Indian Reservations program. We also included a new provision that FTA may exempt a recipient, upon receipt of a request for waiver submitted to the Director of the Office of Civil Rights, from the requirement to submit a Title VI Program, or from some elements of the Title VI Program. Commenters asked about what sort of situation would justify an exemption; there may be unique situations that justify an exemption, and FTA wishes to have this flexibility. The absence of the requirement to submit a Title VI Program does not obviate the underlying obligations to comply with Title VI.
FTA received several comments on section (4) of Chapter III. Some commenters wanted to know what the penalty would be for not submitting an updated Title VI Program the proposed 30 days prior to expiration. A recipient who submits its Title VI Program after its due date runs the risk of having draw-down privileges suspended, or grants not processed. Further, a Title VI Program can only be in “in review” status for 60 days, so it is in the best interest of the recipient to submit the Program 60 days prior to expiration. In the event it takes longer than 60 days for FTA to review a Title VI Program, the status will remain “in review” until FTA has completed its review, although FTA expects that Title VI Programs will be reviewed within this time period. In the event a submitted Title VI Program does not meet the requirements of the Circular and the problems are not corrected by the expiration date, the status will change to “expired” and draw-down privileges may be suspended and grant processing could be impacted. In response to comments that FTA should require recipients to submit Title VI Programs annually for review, an annual submission cannot be effectively administered by either recipients or FTA. However, FTA can request information from recipients at any time if FTA has concerns about Title VI compliance.
Some commenters asked about subrecipient submission of Title VI Programs to primary recipients, and others questioned the feasibility of including subrecipient Title VI Programs in the primary recipient's submission to FTA. Primary recipients may set a three-year schedule for their subrecipients that may or may not conform to the primary recipient's three-year reporting schedule to FTA. This will allow primary recipients with numerous subrecipients to stagger those submissions. In response to comments, FTA has amended the reporting requirement to remove the provision about including copies of subrecipient's Title VI Programs when primary recipients submit their Title VI Programs to FTA. FTA agrees that it can review subrecipient Programs during State Management Reviews, Triennial Reviews, and Title VI Compliance Reviews of primary recipients. Some commenters suggested that requiring all subrecipients to complete a Title VI Program is burdensome and may discourage potential subrecipients from applying for Federal funding, while others requested that subrecipients receiving small amounts of funds not be subject to Title VI reporting. All subrecipients of Federal funding are required to comply with Title VI, so we decline to remove the reporting requirement; however, recipients and subrecipients that provide demand response service, including vanpools, general public paratransit, ADA complementary paratransit, and, as discussed above, non-profit entities that receive section 5310 funds solely to serve their own clientele (i.e., closed-door service), are only required to comply with the Chapter III requirements. Further, all subrecipients may choose to adopt the primary recipient's notice to beneficiaries, complaint procedures and complaint form, public participation plan, and language assistance plan. We have
The remainder of Chapter III consists of detailed descriptions of each element of a Title VI Program. In regard to the requirement to develop and post a notice for beneficiaries about their rights under Title VI, commenters asked for suggestions regarding where the notice should be posted, specifically which locations are required and which are recommended; requested that the dissemination should include non-passengers; and that the notice include other protected classes, such as age, gender and disability. In response, FTA has provided that at a minimum, the notice must be available on a recipient's Web site and in public areas of its offices. We encourage recipients to post notices at stations or stops, and/or on transit vehicles. FTA has no objection to recipients including a general non-discrimination provision in their Title VI notices, as long as it is clear which groups are protected under Title VI.
Commenters requested that documentation related to Title VI investigations, complaints and lawsuits be made readily available to the public. This information must be reported in all recipients' and subrecipients' Title VI Programs, which require Board or other policy decision-making entity approval, which means the entire Title VI Program is available to and may be requested by members of the public. We made one change to section 6, Requirement to Develop Title VI Complaint Procedures and Complaint Form: a requirement to post the complaint form and complaint procedures on the recipient's Web site. This will provide better access to individuals who want to file a complaint.
FTA proposed providing significantly more guidance in the public participation section than what is found in Circular 4702.1A, while still allowing wide latitude for recipients to determine how, when, and how often to engage in public participation activities, and which specific measures are most appropriate. The Circular references the public participation requirements of 49 U.S.C. Sections 5307(b) and 5307(c)(1)(I) (as amended by MAP-21, Public Law 112-141, July 6, 2012) as well as the joint FTA/FHWA (Federal Highway Administration) planning regulations at 23 CFR part 450. This section also cross-references FTA's EJ Circular 4703.1, which has a chapter devoted to effective public participation practices.
FTA received a number of comments on this section. In response to comments, we have changed the title of this section from “public involvement” to “public participation,” and replaced the word “involvement” with “participation” or “engagement” as appropriate. Several commenters asked for clarification of terms such as “consider” and “respond to” the needs of minority populations; unless otherwise defined, words have their generally understood meaning. Several commenters were concerned with language in this section that gives recipients wide latitude in part based on their available resources, stating this would allow agencies the discretion to budget inadequate resources for these activities. Given the wide variation in recipients' and subrecipients' budgets and size of populations served, it is clear to FTA that resources should be a consideration. Certainly it is not the only consideration, and FTA lists a number of factors recipients should consider in developing their public participation plans. Commenters asked FTA to define what the minimum requirements are for public participation, how transit providers would be held accountable for implementing their public engagement plan, and suggested that implementing the proposed strategies for public participation would require significant business process reengineering. In response, FTA will review the public engagement plan and its implementation when reviewing the Title VI Program triennially; as for minimum requirements, as stated above and in the Circular, recipients should take a number of factors into consideration when developing their public participation plans, including the types of activities under consideration, the population affected, and the resources available. Recipients should already be engaging in outreach activities designed to involve minority and LEP populations in activities that have a public participation requirement, and should consider that there are statutory and regulatory requirements for public participation. Commenters suggested that FTA provide more guidance to recipients in drafting public participation plans, asked whether the plan is supposed to be process or outcome oriented, and suggested that FTA should require recipients to engage in efforts to reach people in the service area who are not passengers of the transit system. In response, FTA's EJ Circular 4703.1 provides detailed guidance on public participation strategies, and we have included a reference to the EJ Circular in this section. Public participation efforts are by their nature process-oriented, as recipients can engage in substantial outreach and notification, set meeting times and places that are accessible, but not have robust attendance. Further, outreach efforts are usually not limited to notices on buses or trains, but often include radio and television public service announcements, as well as newspaper advertisements. All of these methods will reach non-passengers. Recipients should document their efforts to engage the public. One commenter asked FTA to clarify the relationship between the Title VI Program and the public participation plan, and suggested the Title VI Program be an appendix to the public participation plan. While the public participation plan is an element of a Title VI Program, it is also a stand-alone document, into which Title VI considerations must be integrated. A recipient's public participation plan will cover much more than how to engage minority and LEP populations. In FTA's view, it would not be appropriate to append the Title VI Program to the public participation plan.
Section 9, Requirement to Provide Meaningful Access to LEP Persons, addresses the existing requirement for a Language Implementation Plan for Limited English Proficient (LEP) persons as well as a summary of the DOT LEP guidance. We proposed including a description of the four factor analysis, information on how to develop a Language Implementation Plan, and a summary of the “safe harbor” provision.
Section 9 is a summary of the LEP requirements outlined in Executive Order 13166, U.S. DOT LEP guidance, and U.S. DOJ LEP guidance. Importantly, FTA cannot make substantive changes to this section except to increase or decrease the amount of information provided. In response to comments, we have provided more guidance related to the four-factor analysis. Much of the information we added comes from a self-assessment tool available on DOJ's LEP Web site,
We proposed restoring the requirement, found in the U.S. DOT Title VI regulation 49 CFR part 21, but not Circular 4702.1A, that a recipient may not, on the grounds of race, color, or national origin, “deny a person the opportunity to participate as a member of a planning, advisory, or similar body which is an integral part of the program.” We proposed that as part of the Title VI Program, for non-elected transit planning, advisory, or similar decision-making body, recipients shall provide a table depicting the racial breakdown of the membership of those bodies, and a description of the efforts made to encourage participation of minorities on such decision-making bodies. FTA received a number of comments on this proposal, generally stating that recipients often do not have control over who is appointed to a board of directors or other decision-making entity. In response, we have revised this section to align more closely with the regulation—it applies to planning and advisory councils or committees that are selected by a recipient, such as Community Advisory Committees, Access Committees, and other types of committees that have an advisory role to an entities' general manager or board of directors but not the board itself. In response to comments, we removed the requirement that such committees be representative of the demographics of the communities they serve; however, recipients must document their efforts to encourage the participation of minorities on such committees.
We proposed moving the topics, “Providing Assistance to Subrecipients” and “Monitoring Subrecipients,” found in the Requirements for States chapter of Circular 4702.1A, to this chapter, as these are existing requirements that are applicable to all recipients that pass funds through to subrecipients, not just States. The requirement to collect Title VI Programs from subrecipients is a new requirement for transit providers that pass funds through to subrecipients, but we note that anytime a recipient passes funds through to a subrecipient, the entity passing funds through is responsible for ensuring its subrecipients are complying with all Federal requirements, not just Title VI. For those commenters concerned about the large number of Title VI Programs they will receive, and potential storage issues, subrecipient Title VI Programs may be stored electronically. Collecting and reviewing each subrecipient's Title VI Program will assist the primary recipient/transit provider in ensuring all subrecipients are in compliance. The language in these sections is substantially similar to the language in Circular 4702.1A.
For section 10, Providing Assistance to Subrecipients, commenters suggested that the provision that primary recipients “should consider” providing information to subrecipients should be a requirement, and requested that FTA state that primary recipients should provide a means by which all subrecipients can collect and share data. We decline to mandate providing specific information to subrecipients, as not all subrecipients will need the same types of information from the primary recipient. We have added language regarding a central repository for information for subrecipients.
FTA received several comments on section 11, Monitoring Subrecipients. A key point that primary recipients should understand is that if the subrecipient is out of compliance with Title VI—or any other Federal requirement—then so is the primary recipient. Thus, it is in the best interest of the primary recipient to both assist its subrecipients with compliance, and monitor that compliance. In response to comments, we have revised the text to state that primary recipients must collect and review subrecipients' Title VI Programs. The Circular does not specify exactly how a primary recipient shall monitor a subrecipient's compliance, just that the primary recipient is responsible for documenting its process for ensuring subrecipients are complying with Title VI.
One commenter suggested that FTA develop a program of training and assistance to aid primary recipients in carrying out technical assistance for subrecpients. FTA will conduct ongoing training through webinars and in-person presentations in order to ensure recipients and subrecipients understand the requirements of the new Circular. Some commenters expressed a preference for thresholds for subrecipient reporting and monitoring, such that subrecipients that receive less than `x' dollars would not be required to report to the primary recipient, and the primary recipient would not be required to monitor the subrecipients. FTA has taken steps to scale various requirements based on size of agency and number of people served, but all recipients and subrecipients must develop and submit Title VI Programs, all are monitored for compliance, whether by FTA or a primary recipient, and all must comply with Title VI. One commenter asked about the authority for primary recipients to enforce subrecipient compliance; in FTA's view it is less a matter of enforcement than it is of monitoring and technical assistance. In the event of a complaint to FTA about subrecipient noncompliance, FTA would investigate and take appropriate enforcement action.
Several commenters expressed concern about FTA's proposal that relieves primary recipients of the responsibility for monitoring subrecipients when those subrecipients also receive funds directly from FTA, and, therefore, report to FTA directly. Some cited a recent Ninth Circuit case,
Sometimes, a designated recipient will carry out projects itself or through subrecipients. Some of these subrecipients may also be direct recipients. Since these direct recipients are responsible for reporting to FTA, there is no need for them to also submit Title VI Programs to the designated (primary) recipient, and the primary recipient is not responsible for monitoring compliance of that subrecipient. FTA believes that a
Finally, we have removed the section, “Guidance on Conducting an Analysis of Construction Projects” and inserted in its place, “Determination of Site or Location of Facilities.” The language in Circular 4702.1A addresses environmental justice concepts as incorporated into National Environmental Policy Act (NEPA) documentation, and we have moved this analysis to the EJ Circular. We proposed revising this section so that it cites the DOT Title VI regulation and describes the requirements related to siting facilities. Recipients must complete a Title VI analysis during project development to determine if the project will have disparate impacts on the basis of race, color, or national origin. If it will have such impacts, the recipient may only locate the project in that location if there is a substantial legitimate justification for locating the project there, and there are no alternative locations that would have a less adverse impact on members of a group protected under Title VI.
Most of the comments on this section asked for examples of what constitutes a facility or project. We have revised this section to clarify that bus shelters are not facilities, since those are covered in transit amenities in Chapter IV. The types of projects to which this section applies include vehicle storage facilities, parking lots, maintenance and operations facilities, etc. Projects related to passenger service, such as power substations for light rail, passenger stations, etc., will be evaluated during project development and the NEPA process.
Chapter IV covers much of the information that is in Chapter V of Circular 4702.1A. Consistent with our desire to have the chapters follow the same format, this chapter starts with an introduction, includes a description as to which entities it applies, and then describes the requirement to prepare and submit a Title VI Program, followed by specific information related to each of the elements contained in the Title VI Program.
In Circular 4702.1A, Chapter V applies to “recipients that provide service to geographic areas with a population of 200,000 people or greater under 49 U.S.C. 5307.” This sentence has created some confusion as to whether recipients in areas with populations over 200,000 but that do not receive funds under 49 U.S.C. 5307 are required to comply with this chapter. In order to eliminate this confusion, we proposed a new threshold: Any provider of public transportation, whether a State, regional or local entity, and inclusive of public and private entities, with an annual operating budget of less than $10 million per year in three of the last five fiscal years as reported to the National Transit Database (NTD) would only be required to set system-wide standards and policies. Providers of public transportation (also referred to as transit providers) with an annual operating budget of $10 million or more in three of the last five consecutive years as reported to the NTD; transit providers with an annual operating budget of less than $10 million but that receive $3 million or more in New Starts, Small Starts or other discretionary capital funds; and transit providers that have been placed in this category at the discretion of the Director of the Office of Civil Rights in consultation with the FTA Administrator, would be required to set system-wide standards and policies, collect and report demographic data, conduct service and fare equity analyses, and monitor their transit service.
FTA received numerous comments on this proposal, many from transit providers in small urbanized areas with annual operating budgets of $15-20 million. Some of the commenter's stated objections included: This change would result in a new unfunded mandate on transit systems in small urban and rural areas; the reporting requirements would have budgetary impacts that would affect the provision of transit service; lumping providers in small and rural areas with large urbanized areas was unreasonable; and the $3 million discretionary grant threshold would discourage small providers from applying for those grants. Commenters made a number of suggestions for alternative thresholds, including keeping the same threshold that is in Circular 4702.1A, using the NTD small system waiver for providers with fewer than 30 vehicles in peak service, and using a 100 bus threshold. In addition, many rural and small urban providers questioned the applicability of the reporting requirements to general public demand response service.
In response to comments, and after examining several options, FTA agrees that this chapter will apply only to fixed route transit providers. Further, only transit providers in large urbanized areas with 50 or more fixed route vehicles in peak service will be responsible for the more comprehensive reporting requirements. “Vehicles” includes any vehicle used in revenue service, such as buses, ferries, and railcars. All other fixed route transit providers, regardless of population of the area, will only be required to set system-wide standards and policies. In the Circular we have clarified that providers that only operate general public demand response, Americans with Disabilities Act complementary paratransit, vanpools, and section 5310 non-profits that serve only their own clientele (closed-door service) will be responsible only for Chapter III reporting requirements.
This threshold ensures that small transit providers in large urbanized areas will no longer be required to collect and report data, conduct service and fare equity analyses, and monitor their transit service. We have retained the provision that allows the Director of the Office of Civil Rights, in consultation with the FTA Administrator, to require a recipient to submit a more comprehensive Title VI Program, as when a transit provider has a one-time or ongoing issue, likely related to a complaint or otherwise compliance-related.
We proposed revising the description of the requirement in Circular 4702.1A to set system-wide service standards and policies. We proposed removing the “transit security” policy, as a transit provider's security policy may be impacted by considerable outside factors that are not within the control of the transit provider. We proposed blending the requirements in one section that covers both standards and policies, rather than listing them separately. In the final Circular, the standards and policies for vehicle load, vehicle headway, on-time performance, service availability, transit amenities and vehicle assignment remain substantially the same as proposed, except we removed intelligent transportation systems (ITS) from the list of amenities. In Circular 4702.1A, FTA recommends that recipients report on these standards and policies, and allows recipients to report on other standards and policies. In contrast to Circular 4702.1A, we proposed that recipients will be required to report on these specific standards and policies, rather than selecting different measures on which to report. In practice, this is not a significant change, since most transit providers report on these standards and policies, and do not select other standards or policies on which to report.
As discussed above, the requirement to set system-wide service standards and policies will apply to all fixed route transit providers, regardless of population of the service area. The requirement to set these standards and policies is a new one for fixed route transit providers in small urban and rural areas. Some commenters located in these areas stated they are not currently developing standards, and in some cases they do not have the personnel or technology to capture on-time performance or vehicle load data. From a business and customer service perspective, it is important for transit providers to know if their routes are running on time and how often or whether there is standing-room-only space on the bus. These measures are not difficult to capture, and this sort of basic data helps transit providers plan and ensure they are providing a quality service. It is likely that FTA would only ask for monitoring data from these transit providers in the event there is a complaint or a problem noted in a compliance review.
FTA has adopted the proposed requirement that all fixed route providers will report on the same standards and policies. Upon review of issues raised by commenters, we have clarified that transit providers will set service standards by mode, and the standards for each mode may be different. For example, a transit provider with local bus service, bus rapid transit (BRT) and light rail will likely have different vehicle load standards and headways depending on the mode, ridership, peak and off-peak weekday hours, weekends, owl service, etc. Even on-time performance standards may be different, given that light rail and possibly BRT travels on an exclusive fixed guideway, where local bus service travels with other traffic. In addition, the standards are transit provider-specific, not industry-specific or even region-specific, and will depend on the characteristics and nature of the service being provided.
Some commenters questioned the relevance of the standards and policies in the circular, and preferred to develop alternative standards and policies. The standards and policies that FTA is requiring transit providers to set are directly related to what passengers experience. Frequency of service, on-time performance, the presence or absence of bus shelters and trash cans are part of the customer experience, and are important not only from a Title VI perspective, which strives to ensure that all passengers are having similar experiences regardless of race, color, or national origin, but also from a customer service perspective generally. The circular does not require a specific frequency of service, set a vehicle load standard, or mandate a certain level of service availability. These are all local decisions. Once the transit provider has made these decisions, by setting its own system-wide standards and policies, it has an obligation to ensure the service is provided in a nondiscriminatory manner.
Circular 4702.1A allows transit providers to choose among options for demographic data collection, service monitoring, and service and fare equity analyses. These options were added during the last revision of the Circular in 2007, to “reduce administrative burdens by giving recipients and subrecipients greater flexibility to meet requirements through procedures that best match their resources needs, and standard practices.” (72 FR 18732, 18735, Apr. 13, 2007). In reality, providing options, including the option to develop a local alternative, has created confusion and inconsistency. Therefore, we proposed removing the options and providing one method of compliance for each of these areas. By eliminating options and clearly stating what is required for compliance, we add certainty for recipients and streamline the Title VI Program review process. Only a few commenters objected to FTA removing the options, and for the reasons stated above, we have adopted the proposal to remove options and have just one method of compliance.
The requirement to collect and report demographic data applies only to transit providers with 50 or more fixed route vehicles in peak service in large urbanized areas. Circular 4702.1A allowed three different options for collecting and reporting demographic data. We proposed eliminating the options and requiring one method of compliance with a simplified and streamlined customer survey data requirement. In Circular 4702.1A, transit providers are required to collect data on travel time, number of transfers, overall cost of the trip, as well as how people rate the quality of service. We proposed instead that transit providers collect data on travel patterns, such as trip purpose and frequency of use.
Commenters expressed concern about the requirement that surveys be conducted every three years, citing the cost of such surveys as a barrier to implementation. In response, FTA has changed the required frequency to not less than every five years. Surveys may be completed in conjunction with other surveys, such as origin and destination surveys used to update travel demand models. Several commenters suggested that Census block groups may provide better data than Census tracts; we agree and have added Census block groups as an option for the demographic maps. Some commenters requested that Census data be the basis for demographic information, as opposed to surveys. Census data is very useful for determining the demographics of a service area, but is not necessarily indicative of the demographics of a transit provider's ridership. When transit providers have ridership data, they can more accurately identify minority and non-minority routes and determine travel patterns, which will assist in determining frequency of use, how many passengers must transfer to get from their origins to their destinations, etc. Commenters suggested that American Community Survey may be a better source of community demographic data, especially between Census counts. FTA has added ACS data as an acceptable source, at the option of the transit provider.
The requirement to monitor transit service applies only to transit providers with 50 or more fixed route vehicles in peak service in large urbanized areas. Circular 4702.1A allows four different options for monitoring service. We proposed removing the options and having one means of complying with the requirement to monitor transit service. As in Circular 4702.1A, transit providers must monitor their transit service against the system-wide standards and policies set by the transit provider. At a minimum, such monitoring will occur every three years and the transit provider will submit the results as part of its Title VI Program. Prior to submitting the information to FTA, we proposed that transit providers will be required to brief their board of directors or appropriate governing entity regarding the results of the monitoring program, and include a copy of the board meeting minutes, resolution, or other appropriate documentation demonstrating the board's consideration of the monitoring program.
Some commenters requested that we consider keeping the local option; as we stated above, by eliminating options and clearly stating what is required for compliance, we add certainty for recipients and streamline the Title VI Program review process, so we have adopted the proposal that there be one method for complying with the service monitoring requirement. We have reorganized this section from what was proposed, without significantly changing the substance. Three commenters asked for further clarification on developing policies or procedures to determine whether
The requirement to perform service and fare equity analyses applies only to transit providers with 50 or more fixed route vehicles in peak service in large urbanized areas. Circular 4702.1A allows two options for evaluating service and fare changes; we proposed removing the option for a locally developed alternative and having one means of complying with the requirement to perform service and fare equity analyses. We proposed that each transit provider to which this section applies will: describe in its service equity analysis its policy for a major service change; describe how the public was engaged in the development of the major service change policy; describe the datasets the provider will use in the service change analysis; prepare maps; analyze the effects of proposed service changes; and analyze the effects of proposed fare changes. In addition, we proposed the transit provider will assess the alternatives available for people affected by the fare increase or decrease or major service change, including reductions or increases in service. Finally, we proposed the transit provider will determine if the proposals would have the effect of disproportionately excluding or adversely affecting people on the basis of race, color, or national origin, or would have a disproportionately high and adverse effect on minority or low-income riders.
FTA received numerous comments on the service and fare equity section of this chapter. Beginning with the definition of a major service change, commenters suggested that transit agencies be required to define major service change based on actual changes implemented in the previous 3-5 years; suggested that FTA should define what constitutes a major service change, so there isn't a “hodgepodge” of major service change policies around the country; and suggested that FTA require that major service change policies account for cumulative impacts of service changes. We decline to accept these suggestions; however, we have added language to this section that requires transit providers to engage the public when establishing the threshold for a major service change. In addition, we have added language suggesting that the threshold for analysis should not be set so high so as to never require an analysis; and, because the amount of service varies from community to community, we have stated that the threshold should be selected in order to yield a meaningful result in light of the transit provider's system characteristics.
Commenters had a number of questions and suggestions about when to conduct a service and fare equity analysis, how to determine if there is a disparate impact, how to conduct separate Title VI and environmental justice analyses, and when a service and fare equity analysis must be submitted to FTA. In response to these and other comments, as well as in response to recent compliance reviews and other events that have occurred since we published the proposed Circular, we carefully reviewed the disparate impact case law and re-drafted this section in order to provide better guidance to transit providers about how to conduct these analyses. We have added a section on developing a disparate impact policy and clearly defined the legal test. We have removed the reference to minority transit route for service equity analyses, and instead provide guidance on how to select the appropriate comparison populations with which to compare the impacts on minority populations. We have separated out the Title VI and EJ analyses and clarified that if there are populations that are both minority and low-income, then a Title VI disparate impact analysis must be completed. Only when an affected population is solely low-income would a transit provider conduct an EJ analysis. Service and fare equity analyses must be submitted to FTA every three years when the transit provider submits the Title VI Program; however, FTA is available to provide technical assistance to transit providers, and in the event of a complaint, may ask to see a service and fare equity analysis in advance of a Title VI Program submission.
A number of commenters suggested that temporary, short-term, or promotional fares should be exempt from a fare equity analysis. We agree and have added three exceptions to the requirement that fare equity analyses be completed prior to fare changes. “Spare the air days” or other promotional “everyone rides free” days do not require a fare equity analysis, since all passengers will ride for free. In addition, a promotional fare reduction that will last six months or less does not need to be analyzed in advance. If the fare becomes permanent or otherwise lasts longer than six months, then the transit provider must conduct a fare equity analysis. Third, a temporary fare reduction that is a mitigating measure for another action, such as closure of rail stations that requires passengers to alter their travel patterns, does not require a fare equity analysis. Several commenters suggested that agreements for free or reduced fares provided to individuals in exchange for a community or sponsor subsidy should not be subject to equity analysis. It seems to us that in this situation, the transit provider has set the fare and someone other than the passenger is paying for it. In this case, we agree that a fare equity analysis is not required unless the transit provider changes the fare.
Finally, we proposed that a transit provider would be required to perform fare and service analyses for New Starts, Small Starts, and other new fixed guideway capital projects prior to entering into a Full Funding Grant Agreement (FFGA) or Project Construction Grant Agreement (PCGA), and updated immediately prior to start of revenue operations. Commenters generally objected to doing a service and fare equity analysis at the time of an FFGA or PCGA, as the project could still be many years from revenue operation. We agree and have revised this requirement accordingly, such that a service and fare equity analysis must be completed when the project is six months from revenue operation. At the suggestion of a commenter, we have also removed the reference to Federal funding of the project as a condition for conducting the service and fare equity analyses. Pursuant to the Civil Rights Restoration Act of 1987, it does not matter if the specific project receives Federal funding if the transit provider receives Federal funding.
This chapter addresses requirements for States that administer FTA programs. As in Circular 4702.1A, States must submit a Title VI Program. This chapter clarifies that States are responsible for including in their Title VI Program the information required from all recipients in Chapter III, and that States providing fixed route public transportation are responsible for the reporting requirements for providers of fixed route public transportation in Chapter IV, in addition to the information required in Chapter V. For clarity, we proposed including as required elements in the Title VI Program all of the elements under the “Planning” section in Circular 4702.1A, as well as the elements listed for the Title VI Program in the existing Circular. We also proposed cross-referencing information related to Title VI that FTA and FHWA jointly assess and evaluate during the planning certification reviews. As in Circular 4702.1A, States are responsible for monitoring their subrecipients, whether
FTA received a few comments on this chapter and we have made several revisions. As with other primary recipients, we have removed the requirement that States submit subrecipient Title VI Programs to FTA. States shall collect subrecipient's Title VI Programs, on a schedule determined by the State, and those submissions may be staggered. Title VI Programs may be collected and stored electronically. We have clarified that demographic maps shall analyze the impacts of the distribution of State and Federal funds in the aggregate for public transportation purposes, clarified that these maps should be developed using Census or ACS data, and that minority data may be provided in the aggregate. Commenters asked for clarification on the demographic maps analyzing impacts of the distribution of funds (proposed paragraph V.2.d.) and the analytical process that identifies investments and potential disparate impacts (proposed paragraph V.2.f.). We have more clearly stated the expectation and provided the disparate impact legal test. Some commenters asked about subrecipient reporting requirements; we direct readers to this discussion in Chapter III—to reduce the burden on primary recipients and subrecipients, subrecipients may choose to adopt the primary recipient's notice to beneficiaries, complaint procedures and complaint form, public participation plan, and language assistance plan.
The proposed chapter VI equates to chapter VII in Circular 4702.1A. While MPOs are required, in Circular 4702.1A, to submit a Title VI Program, the chapter is not clear that the information listed is supposed to be included in the Title VI Program, along with the requirements for all recipients. Therefore, we proposed a substantial rewrite of this chapter that clarified the reporting requirements. Since an MPO may fulfill several roles, including planning entity, designated recipient, direct recipient of FTA funds, and a primary recipient that passes funds through to subrecipients, we clarified the Title VI reporting requirements for each of these roles.
MPOs were generally supportive of the changes to this chapter. Some of the reporting requirements for States and MPO's are the same, so we have made the same changes to the MPO chapter that we made to the State chapter; namely, that minority data may be obtained from the Census or ACS, the data may be aggregated, State and Federal funding may be aggregated, and we have provided the disparate impact legal test. Commenters suggested that for both Chapter V and Chapter VI, States and MPOs be required to use demographic maps that show data at the Census block group level. While it may be appropriate to do some planning analysis at that level, particularly for fixed projects such as maintenance facilities, we decline to require this. We have clarified in both chapters that data should be displayed at the Census tract or block group level. Some commenters requested comprehensive guidance on the planning process be included in the Title VI Circular; however, FTA and FHWA have developed comprehensive guidance on this process and we do not believe it needs to be stated in the Title VI Circular. Some commenters expressed a preference to keep the MPO Title VI reporting requirement to every four years; however, as discussed above, FTA has determined that all recipients will be on a three-year schedule.
This chapter is Chapter X in Circular 4702.1A. FTA believes it makes sense from a flow and format point of view to move this chapter up, followed by compliance reviews in Chapter VIII and complaints in Chapter IX. This chapter generally tracks the DOT Title VI regulation at 49 CFR Sections 21.13 and 21.15.
Some commenters suggested there should be a public participation process for the development of corrective action plans for noncompliant recipients. One commenter suggested that recipients should submit a copy of the board resolution, meeting minutes, or similar documentation with evidence that the board of directors or appropriate governing entity or official(s) has approved the remedial action plan. We decline to include a public participation component in the development of a corrective action plan, but having the plan approved by the board of directors or appropriate governing entity means the plan will be available to the public. We revised this chapter accordingly.
Chapter VIII, Compliance Reviews, is substantially similar to Chapter VII of the same name in Circular 4702.1A. We proposed removing from the list of criteria, “the length of time since the last compliance review,” as in practice FTA has not used this criterion. As in other chapters, we use the word “recipient” to include subrecipients. In Section 6, we proposed removing the opportunity for recipients to review and comment on a draft compliance review. This is consistent with changes we are making in other civil rights processes, and generated the most comments. We decline to put this provision back in the Circular, as recipients participate in an exit interview with the compliance review team, so there should be no surprises in the final report. In addition, there is opportunity to provide information to the review team subsequent to the completion of the review and prior to publication of a final report.
The proposed Chapter IX contains most of the same content that is Chapter IX of Circular 4702.1A. FTA proposed removing the “letter of resolution” in Section 4 as it is duplicative of the “letter of finding” issued when a recipient is found to be noncompliant with the DOT Title VI regulations. We also proposed removing the appeals process, as it is not required by the regulation and removing it will assist with more efficient administration of the Title VI Program. We have added information relating to when a complaint will be administratively closed.
Several commenters suggested that FTA notify complainants once their complaint has been accepted, notify complainants if FTA finds noncompliance following a complaint, and define timelines for resolutions of complaints to FTA. FTA does notify complainants of the status of their complaints, and provides a letter at the conclusion of an investigation as to the findings, as stated in section 5 of this chapter. We decline to include timelines, as the amount of time it takes to investigate and resolve a complaint depends on a number of factors, including the complexity of the complaint. Commenters requested that we reinstate the appeals process language, but we decline to do so. In the event a complainant is not satisfied with the outcome, complainants may contact FTA's Civil Rights Office to discuss.
The proposed appendices are intended as tools to assist recipients in their compliance efforts. FTA proposed adding nearly 40 pages of appendices in order to provide more clarity and examples of what must be included in a Title VI Program and the type of analysis that recipients shall conduct.
Numerous commenters stated that the appendices would be very helpful to recipients. The vast majority of comments received on the appendices
To begin, in Appendix A we added checklists for the elements recipients must include in their Title VI Programs. Recipients can literally “check the box” as they assemble the elements of their Title VI Program.
Appendices B, C and D contain sample procedures and forms that recipients may use as provided, or that they may modify. Appendix B contains a sample Title VI Notice to the public. Appendix C contains a sample Title VI complaint procedure, and Appendix D contains a sample Title VI Complaint Form. All of these documents are “vital documents” for LEP purposes, and each appendix provides information about providing the information in other languages as appropriate.
Appendix E provides a sample form recipients may use for tracking transit-related Title VI investigations, lawsuits and complaints. Appendix F contains a sample table depicting the racial breakdown of the membership of various non-elected bodies, the membership of which is selected by the recipient.
Appendix G contains samples for reporting service standards (vehicle load, vehicle headway, on-time performance, service availability) and Appendix H contains samples for reporting service policies (vehicle assignment and transit amenities). For the service standards for vehicle load and vehicle headway, we have provided two methods of expressing the standard: In writing and in table format. Recipients should provide both the written description and the table when they submit the information in their Title VI Program. The service standards for on-time performance and service availability, as well as the service policies, require a written explanation only.
Appendix I provides sample demographic and service profile maps and charts. Appendix J provides information on reporting the requirement to monitor transit service. The appendix provides tables and maps as examples of how to assess the performance of service on minority and non-minority transit routes for each of the recipient's service standards and service policies. The appendix provides sample tables and written explanations for each of the service standards and policies. These tables are examples of what recipients should submit with their Title VI Programs. Unless requested to verify the information, FTA does not need the raw data generated through the monitoring process.
Appendix K provides checklists for a major service change policy, disparate impact policy, the considerations for a service equity analysis, and considerations for a fare equity analysis. Use of these checklists will assist transit providers in ensuring they have met the requirements of analyzing major service changes and fare changes.
Appendix L provides information on the various types of recipients and the reporting requirements for each type of recipient. There are five flow charts that provide a pictorial representation of the reporting requirements. Finally, Appendix M contains the same content as Appendix D in the current Circular. This appendix provides technical assistance resources for Title VI and Limited English Proficiency.
Federal Transit Administration (FTA), Department of Transportation.
Notice of Intent to prepare an Environmental Impact Statement (EIS) and Environmental Assessment (EA).
The Federal Transit Administration (FTA) and the Metropolitan Atlanta Rapid Transit Authority (MARTA) intend to prepare an Environmental Impact Statement (EIS) for MARTA's I-20 East Transit Initiative project, which would extend the existing east-west rail line from the Indian Creek Station to the Mall at Stonecrest in eastern DeKalb County and an Environmental Assessment (EA) for a new Bus Rapid Transit (BRT) service along I-20 between downtown Atlanta and a new station at Wesley Chapel Road, east of I-285 in DeKalb County. The EIS and EA will be prepared in accordance with the National Environmental Policy Act (NEPA), provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), and will also address the requirements of other federal and state environmental laws. The extension of the existing MARTA east-west rail line and the new BRT service along I-20 were selected as the Locally Preferred Alternative (LPA) based on a two year Detailed Corridor Analysis (DCA) completed in April 2012. The DCA revisited the analysis and conclusions of the I-20 East Corridor Study Alternatives Analysis (AA) completed in 2004 and complied with FTA's New Starts project development process.
The purpose of this Notice of Intent (NOI) is to advise interested agencies and the public regarding the plan to prepare the EIS and EA, to provide information on the nature of the proposed transit project, to invite participation in the NEPA process, including comments on the scope of the EIS and EA proposed in this notice, and to announce where and when public scoping meetings will be conducted. Scoping meetings are an opportunity for government agencies, affected stakeholders, and the general public to provide input and feedback on the project Purpose and Need, the alternatives to be studied, as well as to identify any significant physical, cultural, natural, and social environmental issues within the study area.
The appropriate federal, state, and local agencies will be notified individually about the time and location of the interagency scoping meeting.
The locations of the public scoping meetings are accessible to persons with disabilities. If translation, signing services, or other special accommodations are needed, please contact Jen Price at (404) 377-9147 or for hearing impaired TTY 404-848-5665 at least 48 hours before the meeting. A scoping information booklet will be available one week prior to the meetings on the project web site at:
Brian C. Smart, Environmental Protection Specialist, Federal Transit Administration—Region IV, 230 Peachtree Street, NW—Suite 800, Atlanta, GA 30303, Telephone: (404) 865-5607; Facsimile: (404) 865-5490; Email:
FTA and MARTA will undertake a scoping process that will allow the public and interested agencies to comment on the scope of the environmental review process. Scoping is the process of determining the scope, focus, and content of the EIS and EA. NEPA scoping has specific objectives, identifying the significant issues that will be examined in detail during the EIS and EA, while simultaneously limiting consideration and development of issues that are not truly significant. FTA and MARTA invite all interested individuals and organizations, public agencies, and Native American tribes to comment on the scope of the EIS and EA. To facilitate public and agency comment, a Scoping Information Packet will be prepared for review. Included in this packet will be descriptions of: the Purpose and Need for the project; the alternatives to be studied; the impacts to be assessed; and the draft public outreach and agency coordination plan.
The first phase of the I-20 East Transit Initiative was a two year long DCA. This DCA built upon the transit studies previously completed in the corridor and conformed with FTA's New Starts project development process. The DCA identified and evaluated transit improvements in the I-20 East Corridor from downtown Atlanta to the Mall at Stonecrest, in eastern DeKalb County. The result of the DCA was an LPA which includes the extension of the existing east-west heavy rail transit (HRT) line from the Indian Creek Station to the Mall at Stonecrest in eastern DeKalb County and a new BRT service along I-20 between downtown Atlanta and a new station at Wesley Chapel Road, east of I-285 in DeKalb County.
The EIS, which will focus on the HRT extension, has a study area that extends from the MARTA Indian Creek Station south for 3.5 miles along I-285, then east for approximately 8.5 miles to the Mall at Stonecrest. The EA, which will focus on the new BRT service, has a study area that extends from the MARTA Five Points Station in downtown Atlanta, south along surface streets to I-20, then east along I-20 for approximately 11.5 miles to Wesley Chapel Road in DeKalb County. Both study areas will extend up to
The purpose of the proposed project is to enhance east-west mobility and improve transit accessibility to residential areas and employment centers within the corridor. The existing and future roadway congestion in the I-20 East corridor will have an increasingly detrimental effect on automobile and bus transit travel in the corridor. The proposed transit investments are intended to improve travel times and travel reliability by providing a rapid transit service for commuters traveling to and from central Atlanta.
The need for the proposed project is based on the following considerations of the I-20 East Corridor. There is a need for improved mobility and accessibility in the corridor, as traffic congestion causes delay and slow travel times and there is inadequate access to downtown Atlanta and other employment centers; there is a need for additional travel options in the corridor, which has limited east-west roadways, making I-20 the primary choice for east-west travel in the corridor, and only a limited number of roadway transportation projects or capacity improvements are planned in the corridor to accommodate growth; there is a need for improved transit service in the corridor, which is insufficient for a growing demand, as it consists primarily of local and express buses operating in normal traffic, and which provides limited transportation options for traditionally underserved populations such as minority, low income, transit dependent, and elderly populations; and finally, there is a need to support land use and land and economic development goals within the corridor, areas of which are in need of revitalization.
MARTA recently completed a two year long DCA that evaluated potential alignments and transit technologies for transit improvements in the I-20 East Corridor. From multiple alignment and transit technology alternatives, an LPA was selected and adopted by the MARTA Board of Directors in April 2012. The EIS and EA will evaluate vertical and horizontal alternatives of the adopted LPA as well as a No-Build alternative. These LPA and No-Build alternatives are described as follows:
1. No Build Alternative: This alternative reflects the existing transportation system plus any committed transportation projects. This alternative does not include a major transit investment in the I-20 East Corridor as proposed in the LPA. The No Build Alternative includes only existing or committed MARTA and GRTA local and express bus service in the corridor and any other transportation investment included in the Atlanta Regional Commission's (ARC) long-range transportation plan. ARC is the Metropolitan Planning Organization (MPO) for the Atlanta urbanized area. NEPA requires the consideration of a No Build Alternative as a means of comparing and evaluating
2. Locally Preferred Alternative (LPA): The LPA, as adopted by the MARTA Board of Directors, includes two projects:
a. (1) The extension of the existing east-west heavy rail transit (HRT) line from the Indian Creek Station to the Mall at Stonecrest in southeast DeKalb County and
b. (2) New BRT service along I-20 between downtown Atlanta and a new BRT station at Wesley Chapel Road, east of I-285 in DeKalb County. While the HRT and BRT portions of the LPA both address the need for improved mobility and transit service in the I-20 East Corridor, they represent significantly different transit investments and modes.
For this reason, the HRT extension will be evaluated as the Build Alternative in the EIS and the BRT service will be evaluated as the Build Alternative in the EA. However, since the adopted LPA is a combination of both HRT and BRT, the EIS and EA will be undertaken concurrently with all public outreach presenting information and analysis for both.
The Build Alternative to be evaluated in the EIS is the extension of the existing MARTA east-west HRT line from the Indian Creek Station, south parallel to I-285, then east parallel to I-20 to the Mall at Stonecrest in eastern DeKalb County. The HRT service would include new stations at Covington Highway, Wesley Chapel Road, Panola Road, Lithonia Industrial Blvd., and the Mall at Stonecrest. The HRT alignment would generally be located adjacent to the interstate and would utilize Georgia Department of Transportation (GDOT) right-of-way wherever possible.
The Build Alternative to be evaluated in the EA is a new BRT service between downtown Atlanta and Wesley Chapel Road, operating in HOV lanes on I-20 as much as possible and utilizing surface streets within downtown Atlanta. The BRT service would be a fixed-route, branded, high frequency, all day service utilizing transit stations rather than typical bus stops. From east to west, the BRT service would start at the proposed Wesley Chapel Road HRT/BRT station and utilize the HOV lanes and transit/HOV interchanges to access stations at Candler Road and Gresham Road, then serve stations at Glenwood Avenue, Moreland Avenue, and Bill Kennedy Way/Atlanta BeltLine before terminating at the Five Points Station in downtown Atlanta. The service would utilize arterial BRT enhancements such as Transit Signal Priority (TSP) and queue jumper lanes to maximize the efficiency of surface street operations where necessary.
FTA and MARTA will evaluate both project-specific and secondary and cumulative effects to the physical, cultural, natural, and social environment in the I-20 East Corridor. The permanent, long-term effects to the region could include effects to traffic and transportation; land use and socioeconomics; visual character and aesthetics; noise and vibration; historical and archaeological resources; community impacts; and natural resources. Temporary impacts during construction of the project could include effects to air quality; noise and vibration; natural resources; and contaminated and hazardous materials.
In accordance with 23 CFR 771.105 (a) and 771.133, FTA will comply with all Federal environmental laws, regulations, and executive orders applicable to the proposed project during the environmental review process to the maximum extent practicable. These requirements include, but are not limited to, the regulations of the Council on Environmental Quality, FTA implementing NEPA (40 CFR parts 1500-1508 and 23 CFR Part 771), the project-level air quality conformity regulation of the U.S. Environmental Protection Agency (EPA) (40 CFR part 93), and Section 404 (B) (1) guidelines of EPA (40 CFR part 230), the regulation implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800) and Section 4(f) of the Department of Transportation Act (23 CFR 771.135)), the regulation implementing Section 7 of the Endangered Species Act (50 CFR part 402) Executive Orders 12898 regarding minority and low-income populations, 11988 on floodplain management, and 11990 on wetlands, the Clean Water Act and the Clean Air Act of 1970, along with other applicable Federal and State regulations. Opportunities for comment on the potential effects to be studied will be provided to the public, and comments received will be considered in the development of the final scope and content of the environmental documents.
The regulations implementing NEPA, as well as provisions of SAFETEA-LU, call for public involvement in the NEPA process. In accordance with Section 6002 of SAFETEA-LU, FTA and MARTA will: (1) Extend an invitation to other Federal and non-Federal agencies and Native American Tribes that may have an interest in the proposed project to become “participating agencies” (any interested party that does not receive an invitation to become a participating agency can notify any of the contact persons listed earlier in this NOI); (2) Provide opportunity for involvement by participating agencies and the public to help define the Purpose and Need for the proposed project, as well as the range of alternatives for consideration in the EIS and EA; and (3) Establish a plan for coordinating public and agency participation in, and comment on, the environmental review process.
It is possible that we may not be able to identify all Federal and non-federal agencies and Indian tribes that may have an interest in the proposed project. Any Federal or non-Federal agency or Indian tribe interested in the proposed project that does not receive an invitation to become a participating agency should notify at the earliest opportunity the Project Manager identified above under
A Public Involvement Plan and an Agency Coordination Plan will be developed outlining public and agency involvement for the project. These will be available on the project Web site or through written request. Opportunities for comment will be provided throughout the NEPA process, including public and agency meetings, the project Web site
With the publication of this NOI, the scoping process for the project begins. After the publication of the Draft Scoping Document, a public comment period will begin, allowing the public to offer input on the scope of the EIS and EA until October 15, 2012. Public comments will be received through those methods explained earlier in this NOI and will be incorporated into a Final Scoping Document. This document will detail the scope of the EIS and EA as well as the potential environmental effects that will be considered during the study period. After the completion of the Draft EIS and EA, another public commenting period will allow for input on the EIS and EA, and these comments will be incorporated into the Final EIS and EA/Finding of No Significant Impact (FONSI) reports before publication.
FTA may identify a locally preferred alternative in the DEIS when made available for public and agency comments. Public hearings on the DEIS
Federal Transit Administration (FTA), DOT.
Notice of Availability: Solicitation of Project Proposals
The Federal Transit Administration (FTA) announces the availability of approximately $12 million in Paul S. Sarbanes Transit in Parks Program (Transit in Parks Program) discretionary funds in Fiscal Year (FY) 2012. FTA announced the allocation of $13.5 million in FY 2012 Transit in Parks Program funds in the
The Transit in Parks Program was established by Section 3021 of SAFETEA-LU, as amended (49 U.S.C. 5320), and was repealed, effective October 1, 2012, by the most recent transportation authorization, Moving Ahead for Progress in the 21st Century (MAP-21). This announcement solicits proposals for the final allocation of program funding, as defined above. The program is administered by FTA in partnership with the Department of the Interior and the U.S. Department of Agriculture's Forest Service.
The Transit in Parks Program funds capital and planning expenses for alternative transportation systems such as buses, trams and non-motorized trails in federally managed parks and public lands. Federal land management agencies, as well as State, tribal and local governments, acting with the consent of a Federal land management agency, are eligible to apply. DOI, after consultation with and in cooperation with FTA, will determine the final selection and funding of projects. Geographic diversity will be considered when allocating funds.
This announcement is available on the FTA Web site at:
Complete proposals must be received by 11:59 p.m. EDT on Friday, September 28, 2012.
Project proposals originating from State, Tribal or local government entities must be submitted electronically through the GRANTS.GOV Web site. Project proposals originating from units of Federal land management agencies must be submitted directly to their agency points of contact, as listed at the end of this notice, or to specific regional agency coordinators as directed by each agency. Federal land management agency units may propose projects in cooperation with other eligible funding recipients, including projects where an eligible partner is the intended funding recipient.
Applicants required to use GRANTS.GOV must be properly registered prior to submitting an application, and should initiate the process of registering on the GRANTS.GOV site immediately to ensure completion of registration before the deadline for submission. GRANTS.GOV applicants should receive two confirmation emails. The first will confirm that the application was received and a subsequent email will be sent within 24-48 hours indicating whether the application was validated or rejected by the system. If interested parties experience difficulties at any point during the registration or application process, please call the GRANTS.GOV Customer Support Hotline at 1-800-518-4726, Monday-Friday from 7 a.m. to 9 p.m. EST. The required electronic project proposal template as well as guidance on completing a proposal can be found on GRANTS.GOV or on the program Web site at
The appropriate FTA Regional Office (
Section 3021 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users of 2005 (SAFETEA-LU), as amended, established the Paul S. Sarbanes Transit in Parks Program (Transit in Parks Program) (49 U.S.C. 5320). On July 7, 2012, Moving Ahead for Progress in the 21st Century (MAP-21) was enacted, repealing the Transit in Parks Program effective on October 1, 2012. This notice solicits project proposals for the allocation of approximately $12 million in remaining program funding. The program is administered by the Federal Transit Administration (FTA) in partnership with the Department of the Interior (DOI) and the U.S. Department of Agriculture's Forest Service.
Congestion in and around our national parks and public lands causes traffic delays, creates pollution, and can detract from the visitor experience and the protection of sensitive natural and cultural resources. Since 2006, the Transit in Parks Program has allocated approximately $160 million to competitively selected alternative transportation projects that provide improved mobility and accessibility within our public lands, reduce the environmental impacts of automobile traffic congestion, improve the safety and recreational experience of visitors, and provide sustainable and cost-efficient solutions for transportation challenges on our nation's parks, refuges, forests and other public lands. As with other types of transportation infrastructure, alternative transportation systems on public lands require continued capital investment. In addition, planning studies funded
The purpose of the program is to provide for the capital and planning costs of alternative transportation systems that will enhance the protection of national parks and Federal lands; increase the enjoyment of visitors' experience by conserving natural, historical, and cultural resources; reduce congestion and pollution; improve visitor mobility and accessibility; enhance visitor experience; and ensure access to all, including persons with disabilities.
Since this is the final competition for funding under this program, FTA anticipates prioritizing projects that will be of independent utility and will not require future sources of funding to complete. Additionally, FTA anticipates prioritizing projects that are ready to begin implementation and can be completed within a reasonable timeframe.
Eligible applicants are (1) Federal land management agencies that own or manage a park, refuge or recreational area that is open to the public, including but not limited to units of the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Land Management, the U.S. Forest Service, and the Bureau of Reclamation; and (2) State, tribal and local governments with jurisdiction over land in the vicinity of an eligible area, as defined above, acting with the consent of a Federal land management agency, alone or in partnership with a Federal land management agency or other governmental or non-governmental participant.
SAFETEA-LU defines alternative transportation as “transportation by bus, rail, or any other publicly or privately owned conveyance that provides to the public general or special service on a regular basis, including sightseeing service. Such term also includes a non-motorized transportation system (including the provision of facilities for pedestrians, bicycles, and non-motorized watercraft).”
The program funds capital and planning expenses for alternative transportation systems in, and in the vicinity of, federally owned or managed parks and public lands. A qualified planning or capital project must be within the vicinity of a federally owned or managed park, refuge, or recreational area open to the general public and must meet the goals of the program. The costs of operating and maintaining an alternative transportation system are not eligible under the program. A project proposal may include in its budget up to 15 percent for project administration, contingency, and oversight. As specified in 49 U.S.C. 5320(b)(5), the following types of projects are eligible:
Activities to comply with metropolitan and statewide planning provisions (49 U.S.C. 5320(b)(5)(A) referencing 49 U.S.C. 5303, 5304, 5305). Activities include planning studies for an alternative transportation system including evaluation of no-build and all other reasonable alternatives, traffic studies, visitor utilization studies, transportation analysis, feasibility studies, and environmental studies. Because this is the final allocation of funding under this program, planning proposals must demonstrate independent utility, and projected benefits should not be dependent upon the availability of future funding.
Eligible capital projects include all aspects of “acquiring, constructing, supervising, or inspecting equipment or a facility for use in public transportation, expenses incidental to the acquisition or construction (including designing, engineering, location surveying, mapping, and acquiring rights-of-way), payments for the capital portions of rail trackage rights agreements, transit-related intelligent transportation systems, relocation assistance, acquiring replacement housing sites, and acquiring, constructing, relocating, and rehabilitating replacement housing.”
Capital projects may include projects operated by an outside entity, such as a public transportation agency, state or local government, private company engaged in public transportation, or private non-profit organization; and, projects may also include the deployment/commercialization of alternative transportation vehicles that introduce innovative technologies or methods.
The capital cost of leasing vehicles is an eligible expense under the program. For vehicle acquisition projects, sponsors should compare the cost-effectiveness of leasing versus purchasing vehicles. Leasing may be particularly cost-effective in circumstances in which transit service is only needed during a peak visitation period that lasts only a few months. In these cases, leasing a vehicle for a few months during the year may be less expensive than purchasing a vehicle only used for a few months during the year. An award can cover the capital cost of leasing vehicles but may not cover the cost of operations, such as fuel or operator salaries.
Project sponsors should also compare the cost effectiveness of providing service versus contracting for service. The capital portion of contracted service is an eligible capital expense under the program. For example, if a public land agency contracts with a private bus company to provide shuttle service with privately owned buses, the portion of the contract that covers the capital expense of the buses is an eligible expense under the Transit in Parks Program. Operating expenses are not eligible under the program. Project sponsors should compare the cost-effectiveness of their preferred option to other alternatives in the financial sustainability portion of the proposal.
Fixed guideway projects are eligible for funding through this program. They are defined as transportation projects that run on a dedicated right-of-way, such as a light rail, trolley, bus rapid transit, or any type of ferry system. Eligible projects can include the development of a new fixed guideway project; rehabilitation or modernization of existing fixed guideway systems; and expansion of existing systems. For bus or shuttle projects, eligible projects can include purchase of buses and related equipment; replacement of buses and related equipment; rehabilitation of buses and related equipment; construction of bus-related facilities such as bus shelters; and purchase of rolling stock that incorporates clean fuel technology or the replacement of buses of a type in use on August 10, 2005, with clean fuel vehicles.
The Transit in Parks Program specifically includes these other eligible capital projects:
i. The capital costs of coordinating Federal land management agency public transportation systems with other public transportation systems.
ii. Non-motorized transportation systems (including the provision of facilities for pedestrians, bicycles and non-motorized watercraft).
iii. Water-borne access systems within or in the vicinity of an eligible area as appropriate and consistent with 49 U.S.C. 5320.
iv. Any other alternative transportation project that enhances the environment; prevents or mitigates an adverse impact on a natural resource; improves Federal land management agency resource management; improves visitor mobility and accessibility and the visitor experience; reduces congestion and pollution (including noise pollution and visual pollution); or conserves a natural, historical, or cultural resource (excluding rehabilitation or restoration of a non-transportation facility). This includes the enhancement or extension of qualifying alternative transportation systems, including the development of related intelligent transportation systems (ITS).
In order to be considered for funding a project must consist of one or more of the eligible activities listed above, meet the definition of alternative transportation, and contribute to the goals of the program. Technical assistance relating to planning and implementing eligible alternative transportation systems is available from the Paul S. Sarbanes Transit in Parks Technical Assistance Center (
No one project may receive more than 25 percent of the available funds. Based on the combined availability of $26.9 million in Transit in Parks funds for FY 2012, the statutory maximum is $6.7 million. Based on the limited amount of funding available under this notice, FTA may apply a maximum award ceiling of $2 million. Projects selected for funding may receive up to a 100 percent Federal share.
The required electronic project proposal template can be found on GRANTS.GOV and on the program Web site at
In addition to the proposal template, applicants should submit an engineering cost estimate, or an otherwise detailed budget, and a project timeline that indicates projected start and completion dates. These documents may be submitted as separate attachments. Letters of support, photos, graphics and other non-narrative materials may also be submitted.
Proposed capital projects will be evaluated based on the following criteria:
Proposed planning projects will be evaluated based on the following criteria:
Applicants that have previously received funding through this program must be current in submitting their quarterly and annual reports to FTA to be considered for funding under this program.
A special note on non-motorized transportation systems: While non-motorized systems, such as trails, are eligible under the program, not all non-motorized systems will meet the goals of the program needed to be considered for funding. Like motorized systems, in order to be considered for funding, non-motorized systems must reduce or mitigate the number of auto trips by providing an alternative to travel by private auto. In addition, non-motorized systems must provide a high degree of connectivity within a transportation system. Finally, they should improve safety for motorized and non-motorized transportation system users.
Complete applications must be submitted via GRANTS.GOV by September 28, 2012. Additional program information is available at
•
•
•
•
Federal Transit Administration, DOT.
Notice of extension of comment period.
Chrysler Group LLC has requested that the comment period be extended for thirty (30) days, until October 4, 2012, on the Vehicle Production Group LLC's (VPG) request for the Federal Transit Administration (FTA) to rescind the Buy America non-availability waiver it issued on June 21, 2010, for minivans and minivan chassis. FTA disagrees that a 30-day extension is necessary to adequately provide comments on VPG's request. However, in order to ensure that FTA obtains a comprehensive and in-depth understanding of a potential rescission of this Buy America waiver and its effects, which necessarily involves input from all interested and affected parties, FTA is extending the comment period until September 11, 2012.
Comments must be received by September 11, 2012. Late-filed comments will be considered to the extent practicable.
You may submit comments by any of the methods identified in FTA's August 3, 2012
Mary J. Lee, FTA Attorney-Advisor, at (202) 366-0985 or
On August 3, 2012, FTA published a notice in the
Chrysler Group LLC (Chrysler) has requested that FTA extend the comment period by thirty (30) days, until October 4, 2012. FTA will extend the comment period until September 11, 2012. FTA disagrees that a 30-day extension period is necessary in order for Chrysler or any other interested party to comment on VPG's request to rescind the Buy America waiver for minivans and minivan chassis. However, because of the need to obtain and understand completely the facts surrounding this request and to ensure that all interested parties comment on this significant matter, FTA is extending the comment period until September 11, 2012.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before September 27, 2012 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden to the (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927-5331, email at
Notice is hereby given that on May 14, 2012, the Office of the Comptroller of the Currency (OCC) approved the application of HomeTrust Bank, Clyde, North Carolina to convert to the stock form of organization. Copies of the application are available for inspection. You may personally inspect and photocopy the application at the OCC, 250 E Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 874-4700. Upon arrival, visitors will be required to present valid government-issued photo identification and to submit to security screening in order to inspect and photocopy the application. The application may also be inspected at the OCC Northeast District Licensing Office, 340 Madison Avenue, Fifth Floor, New York, New York 10173-0002. You may do so by calling (212) 790-4055.
By the Office of the Comptroller of the Currency.
Notice is hereby given that on August 13, 2012, the Office of the Comptroller of the Currency (OCC) approved the application of Hamilton Bank, Baltimore, Maryland to convert to the stock form of organization. Copies of the application are available for inspection. You may personally inspect and photocopy the application at the OCC, 250 E Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 874-4700. Upon arrival, visitors will be required to present valid government-issued photo identification and to submit to security screening in order to inspect and photocopy the application. The application may also be inspected at the OCC Northeast District Licensing Office, 340 Madison Avenue, Fifth Floor, New York, New York 10173-0002. You may do so by calling (212) 790-4055.
By the Office of the Comptroller of the Currency.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that a meeting of the Advisory Committee on Homeless Veterans will be held on September 5-7, 2012, in the Onondaga 3 Room at the Embassy Suites Hotel, 6646 Old Collamer Road South, East Syracuse, NY, from 8 a.m. to 4 p.m.
The purpose of the Committee is to provide the Secretary of Veterans Affairs with an on-going assessment of the effectiveness of the policies, organizational structures, and services of the Department in assisting homeless Veterans. The Committee shall assemble and review information relating to the needs of homeless Veterans and provide on-going advice on the most appropriate means of providing assistance to homeless Veterans. The Committee will make recommendations to the Secretary regarding such activities.
On September 5, the Committee will convene in open session to receive briefings from VA and other officials on services for homeless Veterans. The Committee will also receive briefings from subject matter experts on the Committee's annual report suggestions to VA's 5 Year Plan to End Homelessness for Veterans. On September 6, the Committee will convene in closed session to protect patient privacy to conduct a site visit at the Donald J. Mitchell VA Outpatient Clinic, Griffiss Business Park, 125 Brookley Road, Building 510, Rome, NY, and to receive information on homeless Veterans programs and services in rural areas. Closing portions of the sessions are in accordance with 5 U.S.C. 552b(c)(6). On September 7, the Committee will convene in open session to discuss items for its upcoming annual report and recommendations to the Secretary.
No time will be allocated at this meeting for receiving oral presentations from the public. Interested parties should provide written comments on issues affecting homeless Veterans for review by the Committee to Mr. Pete Dougherty, Designated Federal Officer, Homeless Veterans Initiative Office (075D), Department of Veterans Affairs, 1722 Eye Street NW., Washington, DC 20006, or email to
By Direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on Former Prisoners of War (FPOW) has scheduled a meeting on September 10-12, 2012, at the Washington DC Veterans Affairs Medical Center, 50 Irving Street NW., Washington, DC. The meeting will be held from 9 a.m. to 4 p.m. on September 10 and 11 and from 9 a.m. to 1 p.m. on September 12.
The purpose of the Committee is to advise the Secretary of Veterans Affairs on the administration of benefits under Title 38, United States Code, for Veterans who are former prisoners of war, and to make recommendations on the needs of such Veterans for compensation, health care, and rehabilitation.
In the morning of September 10, the Committee will convene an open session to hear from its Chairman and receive briefings by the Director of the Robert E. Mitchell Center and the Service Center Manager of the Baltimore VA Regional Office. In the afternoon, the Committee will convene a closed session to in order to protect patient privacy as the Committee tours the VA Medical Center. Closing portion of this session is in accordance with 5 U.S.C. 552b(c)(6). On September 11, the Committee will convene an open session to receive briefings from its Chairman, the Employee Education System, and the Benefits Assistance Service. The Committee will also host a public forum and panel to gain information on FPOW issues and recommendations for health benefits and claims processing. In the afternoon, the Committee will receive briefings by the Veterans Health Benefits staff on the Mental Health Disaster Response and Post Deployment Activities. On September 12, the Committee will meet in open session to discuss its 2011/2012 recommendations and draft its report.
Individuals who wish to speak at the public forum are invited to submit a 1 to 2 page summary of their comments at the end of the meeting for inclusion in the official meeting record. Members of the public may also submit written statements for the Committee's review to Ms. Pam Burd, Program Analyst, Compensation Service (212C), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, or by email at
By Direction of the Secretary.
Commodity Futures Trading Commission.
Notice of Proposed Order and Request for Comment.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is requesting comment on a proposed exemption (the “Proposed Exemption”) issued in response to a consolidated petition (“Petition”)
The Commission seeks comment on the Petition, the Proposed Exemption and related questions. A copy of the Petition requesting the exemption is available on the Commission's Web site at
Comments must be received on or before September 27, 2012.
You may submit comments by any of the following methods:
• The agency's Web site, at
•
•
•
Please submit your comments using only one method.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments may be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Robert B. Wasserman, Chief Counsel, 202-418-5092,
On February 7, 2012, Petitioners collectively filed a Petition with the Commission requesting that the Commission exercise its authority under section 4(c)(6) of the CEA
Petitioners specifically request that the Commission exempt from most provisions of the CEA certain “financial transmission rights,” “energy transactions,” “forward capacity transactions,” and “reserve or regulation transactions,” as those terms are defined in the Petition, if such transactions are offered or entered into pursuant to a tariff under which a Petitioner operates that has been approved by FERC or PUCT, as applicable, as well as any persons (including Petitioners, their members and their market participants) offering, entering into, rendering advice, or rendering other services with respect to such transactions.
On July 21, 2010, President Obama signed the Dodd-Frank Act. Title VII of the Dodd-Frank Act amended the CEA
The Commission shall have exclusive jurisdiction, except to the extent otherwise provided in the Wall Street Transparency and Accountability Act of 2010 (including an amendment made by that Act) and subparagraphs (C), (D), and (I) of this paragraph and subsections (c) and (f), with respect to accounts, agreements (including any transaction which is of the character of * * * an “option”), and transactions involving swaps or contracts of sale of a commodity for future delivery (including significant price discovery contracts) traded or executed on a contract market * * * or a swap execution facility * * * or any other board of trade, exchange, or market * * *.
The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, FERC, and state agencies as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff of an RTO and ISO.
(I)(i) Nothing in this Act shall limit or affect any statutory authority of the Federal Energy Regulatory Commission or a State regulatory authority (as defined in section 3(21) of the Federal Power Act (16 U.S.C. 796(21)) with respect to an agreement, contract, or transaction that is entered into pursuant to a tariff or rate schedule approved by the Federal Energy Regulatory Commission or a State regulatory authority and is—
(I) Not executed, traded, or cleared on a registered entity or trading facility; or
(II) Executed, traded, or cleared on a registered entity or trading facility owned or operated by a regional transmission organization or independent system operator.
(ii) In addition to the authority of the Federal Energy Regulatory Commission or a State regulatory authority described in clause (i), nothing in this subparagraph shall limit or affect—
(I) Any statutory authority of the Commission with respect to an agreement, contract, or transaction described in clause (i); or
(II) The jurisdiction of the Commission under subparagraph (A) with respect to an agreement, contract, or transaction that is executed, traded, or cleared on a registered entity or trading facility that is not owned or operated by a regional transmission organization or independent system operator (as defined by sections 3(27) and (28) of the Federal Power Act (16 U.S.C. 796(27), 796(28)).
In addition, Dodd-Frank Act section 722(g) (not codified in the United States Code) expressly states that FERC's pre-existing statutory enforcement authority is not limited or affected by amendments to the CEA. Section 722(g) states:
(g) AUTHORITY OF FERC.—Nothing in the Wall Street Transparency and Accountability Act of 2010 or the amendments to the Commodity Exchange Act made by such Act shall limit or affect any statutory enforcement authority of the Federal Energy Regulatory Commission pursuant to section 222 of the Federal Power Act and section 4A of the Natural Gas Act that existed prior to the date of enactment of the Wall Street Transparency and Accountability Act of 2010.
While the Dodd-Frank Act sets forth a clear statement of the Commission's exclusive jurisdiction and authorities as related to FERC and state regulatory authorities, the Dodd-Frank Act also granted the Commission specific powers to exempt certain contracts, agreements or transactions from duties otherwise required by statute or Commission regulation by adding a new section to the CEA, section 4(c)(6), that permits the Commission to exempt from its regulatory oversight, among other things, agreements, contracts, or transactions traded pursuant to an RTO or ISO tariff that has been approved or permitted to take effect by FERC or a State regulatory authority, as applicable.
The Commission must act “in accordance with” section 4(c)(1) and (2) of the CEA, when issuing an electricity exemption under section 4(c)(6).
In granting exemptive authority to the Commission under new section 4(c), the Conferees recognize the need to create legal certainty for a number of existing categories of instruments which trade today outside of the forum of a designated contract market.
The provision included in the Conference substitute is designed to give the Commission broad flexibility in addressing these products
* * * * *
In this respect, the Conferees expect and strongly encourage the Commission to use its new exemptive power promptly upon enactment of this legislation in four areas where significant concerns of legal uncertainty have arisen: (1) Hybrids, (2) swaps, (3) forwards, and (4) bank deposits and accounts.
The Commission is not required to ascertain whether a particular transaction would fall within its jurisdiction prior to exercising its exemptive authority under section 4(c). The Conferees stated that they did:
not intend that the exercise of exemptive authority by the Commission would require any determination before hand that the agreement, instrument, or transaction for which an exemption is sought is subject to the Act. Rather, this provision provides flexibility for the Commission to provide legal certainty to novel instruments where the determination as to jurisdiction is not straightforward * * *
H.R. Rep. No. 978, 102d Cong. 2d Sess., (1992) at 82-83.
Section 4(c)(2) of the CEA
The Commission shall not grant any exemption * * * from any of the requirements of subsection (a) unless the Commission determines that (A) the requirement should not be applied to the agreement, contract, or transaction for which the exemption is sought and that the exemption would be consistent with the public interest and the purposes of this Act; and (B) the agreement, contract, or transaction—
(i) Will be entered into solely between appropriate persons; and
(ii) Will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under this Act.
Each Petitioner is subject to regulation by FERC, with the exception of ERCOT, which is regulated by PUCT.
In 1920, Congress established the Federal Power Commission (“FPC”).
In 1996, FERC issued FERC Order 888, which promoted competition in the generation market by ensuring fair access and market treatment by transmission customers.
In addition, FERC has issued orders that address areas such as increased RTO and ISO participation by transmission utilities, increased use of long-term firm transmission rights, increased investment in transmission infrastructure, reduced transmission congestion and the use of demand-response.
In 1975, the Texas Legislature enacted the Public Utility Regulatory Act (“PURA”) and created PUCT to provide statewide regulation of the rates and services of electric and telecommunications utilities.
As discussed above, both FERC and PUCT assert that their primary goal in regulating their respective electricity markets is to ensure that consumers are able to purchase electricity on a safe, reliable and affordable basis.
After due consideration, the Commission proposes to exempt certain Financial Transmission Rights (“FTRs”), Energy Transactions, Forward Capacity Transactions, and Reserve or Regulation Transactions (collectively, the “Transactions”), each as defined below, pursuant to section 4(c)(6) of the Act.
An FTR is a transaction, however named, that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference between the price for electricity, established on an electricity market administered by a Petitioner, at a specified source (
“Energy Transactions” are transactions in a “Day-Ahead Market”
“Forward Capacity Transactions” fall into three distinct categories, Generation Capacity (“GC”), Demand Response (“DR”), and Energy Efficiency.
“Reserve Regulation Transactions” allow a Petitioner to purchase through auction, for the benefit of load serving entities (“LSEs”) and resources, the right, during a period of time specified in the Petitioner's Tariff, to require the seller to operate electric facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of electricity to the electric power transmission system operated by the Petitioner with physical performance by the seller's facilities within a response interval specified in the Petitioner's tariff (Reserve Transaction), or prompt physical performance by the seller's facilities (Area Control Error Regulation Transaction).
The Proposed Exemption would be subject to certain conditions. First, all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be either “appropriate persons,” as such term is defined in sections 4(c)(3)(A) through (J) of the Act, or “eligible contract participants,” as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m).
Second, the agreements, contracts or transactions that are covered by the Proposed Exemption must be offered or sold pursuant to a Petitioner's tariff, which has been approved or permitted to take effect by:
(1) In the case of ERCOT, the PUCT or
(2) In the case of all other Petitioners, FERC.
Third, none of a Petitioner's tariffs or other governing documents may include any requirement that the Petitioner notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation.
Finally, information sharing arrangements that are satisfactory to the Commission between the Commission and FERC and between the Commission and PUCT must be in full force and effect.
As discussed above, the Commission proposes to exempt the Transactions pursuant to section 4(c)(6) of the Act based, in part, on certain representations made by Petitioners as well as the additional limitations that are noted below. As represented in the Petition, the exemption requested by Petitioners relate to Transactions that are primarily entered into by commercial participants that are in the business of generating, transmitting and distributing electricity.
The Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide for exemptions for certain transactions entered into (a) pursuant to a tariff or rate schedule approved or permitted to take effect by FERC, or (b) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality, as eligible for exemption pursuant to the Commission's 4(c) exemptive authority.
(6) If the Commission determines that the exemption would be consistent with the public interest and the purposes of this Act, the Commission shall, in accordance with paragraphs (1) and (2), exempt from the requirements of this Act an agreement, contract, or transaction that is entered into—
(A) Pursuant to a tariff or rate schedule approved or permitted to take effect by the Federal Energy Regulatory Commission;
(B) Pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality; or
(C) Between entities described in section 201(f) of the Federal Power Act (16 U.S.C. 824(f)).
CEA section 4(c)(1) requires that the Commission act “by rule, regulation or order, after notice and opportunity for hearing.” It also provides that the Commission may act “either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively or both” and that the Commission may provide exemption from any provisions of the CEA except subparagraphs (C)(ii) and (D) of section 2(a)(1).
(c)(1) In order to promote responsible economic or financial innovation and fair competition, the Commission by rule, regulation, or order, after notice and opportunity for hearing, may (on its own initiative or on application of any person, including any board of trade designated or registered as a contract market or derivatives transaction execution facility for transactions for future delivery in any commodity under section 5 of this Act) exempt any agreement, contract, or transaction (or class thereof) that is otherwise subject to subsection (a) (including any person or class of persons offering, entering into, rendering advice or rendering other services with respect to, the agreement, contract, or transaction), either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively, or both, from any of the requirements of subsection (a), or from any other provision of this Act (except subparagraphs (C)(ii) and (D) of section 2(a)(1), except that—
(A) Unless the Commission is expressly authorized by any provision described in this subparagraph to grant exemptions, with respect to amendments made by subtitle A of the Wall Street Transparency and Accountability Act of 2010—
(i) With respect to—
(I) Paragraphs (2), (3), (4), (5), and (7), paragraph (18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), (41), (42), (46), (47), (48), and (49) of section 1a, and sections 2(a)(13), 2(c)(1)(D), 4a(a), 4a(b), 4d(c), 4d(d), 4r, 4s, 5b(a), 5b(b), 5(d), 5(g), 5(h), 5b(c), 5b(i), 8e, and 21; and
(II) Section 206(e) of the Gramm-Leach-Bliley Act (Pub. L. 106-102; 15 U.S.C. 78c note); and
(ii) in sections 721(c) and 742 of the Dodd-Frank Wall Street Reform and Consumer Protection Act; and
(B) The Commission and the Securities and Exchange Commission may by rule, regulation, or order jointly exclude any agreement, contract, or transaction from section 2(a)(1)(D)) if the Commissions determine that the exemption would be consistent with the public interest.
CEA section 4(c)(2) requires the Commission to determine that: To the extent an exemption provides relief from any of the requirements of CEA section 4(a), the requirement should not be applied to the agreement, contract or transaction; the exempted agreement, contract, or transactions will be entered into solely between appropriate persons;
CEA section 4(c)(3) outlines who may constitute an appropriate person for the purpose of a 4(c) exemption, including as relevant to this Notice: (a) Any person that fits in one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.
(A) A bank or trust company (acting in an individual or fiduciary capacity).
(B) A savings association.
(C) An insurance company.
(D) An investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.).
(E) A commodity pool formed or operated by a person subject to regulation under this Act.
(F) A corporation, partnership, proprietorship, organization, trust, or other business entity with a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, or the obligations of which under the agreement, contract or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by any such entity or by an entity referred to in subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph.
(G) An employee benefit plan with assets exceeding $1,000,000, or whose investment decisions are made by a bank, trust company, insurance company, investment adviser registered under the Investment Advisers Act of 1940 (15 U.S.C. 80a-1 et seq.), or a commodity trading advisor subject to regulation under this Act.
(H) Any governmental entity (including the United States, any state, 4-1 or any foreign government) or political subdivision thereof, or any multinational or supranational entity or any instrumentality, agency, or department of any of the foregoing.
(I) A broker-dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) acting on its own behalf or on behalf of another appropriate person.
(J) A futures commission merchant, floor broker, or floor trader subject to regulation under this Act acting on its own behalf or on behalf of another appropriate person.
(K) Such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.
In connection with the Proposed Exemption, the Commission has considered and proposes to determine that: (i) The Proposed Exemption is consistent with the public interest and the purposes of the CEA; (ii) CEA section 4(a) should not apply to the transactions or entities eligible for the Proposed Exemption, (iii) the persons eligible to rely on the Proposed Exemption are appropriate persons pursuant to CEA section 4(c)(3); and (iv) the Proposed Exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.
As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA. Section 3(a) of the CEA provides that transactions subject to the CEA affect the national public interest by providing a means for managing and assuming price risk, discovering prices, or disseminating pricing information through trading in liquid, fair and financially secure trading facilities. Section 3(b) of the CEA identifies the purposes of the CEA:
It is the purpose of this Act to serve the public interests described in subsection (a) through a system of effective self-regulation of trading facilities, clearing systems, market participants and market professionals under the oversight of the Commission. To foster these public interests, it is further the purpose of this Act to deter and prevent price manipulation or any other disruptions to market integrity; to ensure the financial integrity of all transactions subject to this Act and the avoidance of systemic risk; to protect all market participants from fraudulent or other abusive sales practices and misuses of customer assets; and to promote responsible innovation and fair competition among boards of trade, other markets and market participants.
The Petitioners assert that the Proposed Exemption would be consistent with the public interest and purposes of the CEA,
Of single importance, Petitioners are responsible for “ensur[ing] the development and operation of market mechanisms to manage transmission congestion. * * * The market mechanisms must accommodate broad participation by all market participants, and must provide all transmission customers with efficient price signals that show the consequences of their transmission usage decisions.”
Petitioners also explain that the Transactions are primarily entered into by commercial participants that are in the business of generating, transmitting, and distributing electricity,
Fundamental to the Commission's “public interest” and “purposes of the [Act]” analysis is the fact that the Transactions are inextricably tied to the Petitioners' physical delivery of electricity, as represented in the Petition.
Finally, and as discussed in detail below, the extent to which the Proposed Exemption is consistent with the public interest and the purposes of the Act can, in major part, be measured by the extent to which the tariffs and activities of the Petitioners, and supervision by FERC and PUCT, are congruent with, and sufficiently accomplish, the regulatory objectives of the relevant core principles set forth in the CEA for derivatives clearing organizations (“DCOs”) and swap execution facilities (“SEFs”). Specifically, providing a means for managing or assuming price risk and discovering prices, as well as prevention of price manipulation and other disruptions to market integrity, are addressed by the core principles for SEFs. Ensuring the financial integrity of the transactions and the avoidance of systemic risk, as well as protection from the misuse of participant assets, are addressed by the core principles for DCOs. Deterrence of price manipulation (or other disruptions to market integrity) and protection of market participants from fraudulent sales practices is achieved by the Commission retaining and exercising its jurisdiction over these matters. Therefore, the Commission has incorporated its DCO/SEF core principle analysis, set forth below, into its consideration of the Proposed
Based on this review, the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA, and the Commission is specifically requesting comment on whether the Proposed Exemption is consistent with the public interest and the purposes of the Act.
CEA section 4(c)(2)(A) requires, in part, that the Commission determine that the Transactions covered under the Proposed Exemption should not be subject to CEA section 4(a)—generally, the Commission's exchange trading requirement for a contract for the purchase or sale of a commodity for future delivery. Based in major part on the Petitioners' representations, the Commission has examined the Transactions, the Petitioners, and their markets in the context of the CEA core principle requirements applicable to a DCO and to a SEF.
The Commission is requesting comment on whether its Proposed Exemption of the Transactions from CEA section 4(a) is appropriate.
CEA section 4a(c)(2)(B)(i) requires that the Commission determine that the Proposed Exemption is properly limited to transactions entered into between appropriate persons as described in CEA section 4(c)(3). The Petitioners assert that each Petitioner's market participants fit within the “appropriate person” requirement under CEA section 4(c)(3), relying primarily on two categories of appropriate persons. The first category includes those entities that have a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, as identified in CEA section 4(c)(3)(F).
The Petitioners explain that FERC has instructed all RTOs and ISOs subject to FERC supervision
In Order No. 741, FERC directed each of the ISOs/RTOs to establish minimum criteria for market participants. FERC did not specify the criteria the ISOs/RTOs should apply, but rather directed them to establish criteria through their stakeholder processes. Accordingly, each of the FERC jurisdictional ISOs/RTOs submitted to FERC proposals to establish minimum criteria for participation in their markets. Although ERCOT is not subject to the requirements FERC's Credit Reform Orders, ERCOT is reviewing its participant eligibility standards to ensure that they are consistent with the requirements of Section 4(c). These proposals were accepted by FERC subject to a supplemental compliance filing to provide for verification of risk management policies and procedures.
Although there is some variation among the minimum participation criteria adopted by each ISO/RTO, included in each is a baseline capitalization requirement that participants have net worth of at least $1 million or total assets of at least $10 million.
The criteria of some ISOs/RTOs also reduce the financial security posting requirement for certain entities that maintain only small positions on the markets of the ISO/RTO and therefore expose the ISOs/RTOs to minimal risk. These entities are instead required to post additional financial security with the ISO/RTO in an amount that would depend on the size of their positions. In this regard, a notable number of participants in the markets of some ISOs/RTOs include cooperatives, municipalities or other forms of public corporate entities which are authorized to own, lease and operate electric generation, transmission or distribution facilities. [
The Commission is proposing to limit the Proposed Exemption to entities that meet one of the appropriate persons categories in CEA section 4(c)(3)(A) through (J), or, pursuant to CEA section 4(c)(3)(K), that otherwise qualify as an eligible contract participant (“ECP”), as that term has been defined.
Based on representations contained in the Petition, the Commission can determine the Proposed Exemption is limited to appropriate persons for those market participants meeting the categories described defined in CEA section 4(c)(3)(A) through (J). The CFTC is requesting comment as to whether the entities defined in CEA section 4(c)(3)(A) through (J) are appropriate persons for the purpose of the Proposed Exemption.
For those ECPs engaging in Transactions in markets administered by the Petitioner that do not fit within 4(c)(3)(A) through (J), the Commission is proposing to determine that they are appropriate persons pursuant to section 4c(3)(K), “in light of their financial or other qualifications, or the applicability of appropriate regulatory protections” to the extent that such persons are otherwise ECPs. The Commission can base this determination on the financial security posting schemes, described by the Petitioners, applicable to the entities engaging in the Transactions, as well as the market based protections applicable to the Transactions regardless of participant, as described in the Commission's public interest and purposes of the Act analysis, above. In addition, CEA section 2(e) permits all ECPs to engage in swaps transactions other than on a designated contract market (“DCM”), and so such entities should similarly be appropriate persons for the purpose of the Proposed Exemption. The Commission is requesting comment on whether the market participants entering into the Transactions in markets administered by the Petitioners, particularly those that do not fit within 4(c)(3)(A) through (J), but that are ECPs, may nonetheless be appropriate persons pursuant to CEA section 4(c)(3)(K), in light of the financial posting scheme that applies to such participants, and in light of the regulatory and market oversight programs that apply to the Transactions in the Petitioners' markets.
The Commission also requests comment as to whether there are currently entities engaging in the Transactions that are neither entities that fall within CEA section 4(c)(3)(A) through (J) entities nor ECPs. If there are such entities, on what basis may the Commission similarly conclude that such entities are, pursuant to CEA section 4(c)(3)(K), appropriate persons for the purpose of the Proposed Exemption? In particular, the Commission seeks comment as to whether there any other of the Petitioners' market participants that “active[ly] participat[e] in the generation, transmission or distribution of electricity” that are not ECPs and do not fall within CEA section 4(c)(3)(A) through (J), who should nonetheless be included as appropriate persons pursuant to CEA section 4(c)(3)(K).
CEA section 4(c)(2)(B)(ii) requires the Commission to determine that the Transactions subject to the Proposed Exemption will not have a material adverse effect on the ability of the Commission or any contract markets to perform regulatory or self-regulatory duties.
Petitioners contend that the Proposed Exemption will not have a material adverse effect on the Commission's or any contract market's ability to discharge its regulatory function,
Under Section 4(d) of the Act, the Commission will retain authority to conduct investigations to determine whether [Petitioners] are in compliance with any exemption granted in response to this request. * * * [T]he requested exemptions would also preserve the Commission's existing enforcement jurisdiction over fraud and manipulation. This is consistent with section 722 of the Dodd-Frank Act, the existing MOU between the FERC and the Commission and other protocols for inter-agency cooperation. The [Petitioners] will continue to retain records related to the Transactions, consistent with existing obligations under FERC and PUCT regulations.
The regulation of exchange-traded futures contracts and significant price discovery contracts (“SPDCs”) will be unaffected by the requested exemptions. Futures contracts based on electricity prices set in the Petitioners' markets that are traded on a designated contract market and SPDCs will continue to be regulated by and subject to the requirements of the Commission. No current requirement or practice of the ISOs/RTOs or of a contract market will be affected by the Commission's granting the requested exemptions.
These factors appear to support the Proposed Exemption. In addition, the limitation of the exemption to Transactions between certain “appropriate persons” as discussed above, avoids potential issues regarding financial integrity and customer protection. That is, this approach would appear to ensure that Transactions subject to this Proposed Exemption would be limited to sophisticated entities that are able to, from a financial standpoint, understand and manage risks associated with such Transactions.
Moreover, the Proposed Exemption does not exempt Petitioners from CEA sections 2(a)(1)(B), 4b, 4c(b), 4
In addition, it appears that granting the exemption for the Transactions will not have a material adverse effect on the ability of any contract market to discharge its self-regulatory duties under the Act. With respect to FTRs, Forward Capacity Transactions, and Reserve or Regulation Transactions, these transactions do not appear to be used for price discovery or as settlement prices for other transactions in Commission regulated markets. Therefore, the Proposed Exemption should not have a material adverse effect on any contract market carrying out its self-regulatory function.
With respect to Energy Transactions, these transactions do have a relationship to Commission regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction. Granting the Proposed Exemption, however, should not pose regulatory burdens on a contract market because, as discussed in more detail below, Petitioners have market monitoring systems in place to detect
Finally, the Commission notes that if the Transactions ever could be used in combination with trading activity or a position in a DCM contract to work some market abuse, both the Commission and DCMs have sufficient independent authority over DCM market participants to monitor for such activity.
The CFTC is requesting comment as to whether the Proposed Exemption will have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the Act, and, if so, what conditions can or should be imposed on the Order to mitigate such effects.
On October 21, 2010, FERC amended its regulations to encourage clear and consistent risk and credit practices in the organized wholesale electric markets to,
In effect, Order 741 requires those RTOs and ISOs that are subject to FERC supervision to implement the following reforms: “shortened settlement timeframes, restrictions on the use of unsecured credit, elimination of unsecured credit in all [FTRs] or equivalent markets, adoption of steps to address the risk that RTOs and ISOs may not be allowed to use netting and set-offs, establishment of minimum criteria for market participation, clarification regarding the organized markets' administrators' ability to invoke `material adverse change' clauses to demand additional collateral from participants, and adoption of a two-day grace period for `curing' collateral calls.”
As discussed in more detail below, particularly in section V.C., the requirements set forth in Order 741 appear to achieve goals similar to the regulatory objectives of the Commission's DCO Core Principles.
FERC regulation 35.47(c) calls for the elimination of unsecured credit in the financial transmission rights markets and equivalent markets.
In addition, FERC regulation 35.47(a) requires RTOs and ISOs to have tariff provisions that “[l]imit the amount of unsecured credit extended by [an RTO or ISO] to no more than $50 million for each market participant.”
FERC regulation 35.47(b) mandates that RTOs and ISOs have billing periods and settlement periods of no more than seven days.
FERC regulation 35.47(d) requires RTOs and ISOs to ensure the enforceability of their netting arrangements in the event of the insolvency of a member by doing one of the following: (1) Establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC.
FERC regulation 35.47(e) limits the time period within which a market participant must cure a collateral call to no more than two days.
FERC regulation 35.47(f) imposes minimum market participant eligibility requirements that apply consistently to all market participants and, as set forth in the preamble to Original Order 741, requires RTOs and ISOs to engage in periodic verification of market participant risk management policies and procedures.
FERC regulation 35.47(g) requires ISOs and RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change.
As such, on the basis of the representations contained in the Petition, including the fact that, as discussed in further detail below,
Core Principle A requires a DCO to comply with each core principle set forth in section 5b(c)(2) of the CEA, as well as any requirement that the Commission may impose by rule or regulation pursuant to section 8a(5) of the Act for a DCO to be registered and maintain its registration.
Petitioners represent that, although they are principally regulated by FERC and PUCT and that there are differences between Petitioners and registered DCOs, Petitioners' practices are consistent with the core principles for DCOs.
Core Principle B requires a DCO to have adequate financial, operational, and managerial resources to discharge each of its responsibilities.
Petitioners represent that they maintain sufficient financial resources to meet their financial obligations to their members notwithstanding a default by the member creating the largest financial exposure for that organization in extreme but plausible market conditions.
In the event that a default occurs and there is inadequate collateral for a particular participant, the Petitioners' represent that the deficiencies would be addressed by mutualization among the non-defaulting participants to whom the Petitioner would otherwise be obligated, allocated pursuant to a pre-determined formula that is included in each Petitioner's tariff.
On the basis of these representations, the Commission believes that each Petitioner's financial resource requirements appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle B in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Each Petitioner represents that it has sufficient operational resources to cover its operating costs through a charge allocated to its participants and set forth in its Tariffs, which are approved by FERC and PUCT, as applicable.
Each of the Petitioners represents that it has adequate managerial resources to discharge its responsibilities as an organized wholesale electricity market.
In addition, FERC Order No. 2000 requires that RTOs have an open architecture so that the RTO and its members have the flexibility to improve their organizations in the future in terms of structure, geographic scope, market support and operations in order to adapt to an environment that is rapidly changing and meet market needs.
Petitioners represent that they maintain the staff and labor necessary to fulfill their obligations and responsibilities, and only employ persons who are appropriately qualified, skilled and experienced in their respective trades or occupations
DCO Core Principle C requires each DCO to establish appropriate admission and continuing eligibility standards for member and participants (including sufficient financial resources and operational capacity), as well as to establish procedures to verify, on an ongoing basis, member and participant compliance with such requirements.
As discussed above, the FERC Credit Policy appears to impose participant eligibility requirements that are consistent with regulatory objectives of DCO Core Principle C.
Because the minimum participation criteria that will be adopted by Petitioners will be included in their respective tariffs, which are publicly available on each Petitioner's Web site, such criteria will be publicly disclosed. In addition, FERC notes that it reviews proposed tariff language “to ensure that it is just and reasonable and not unduly discriminatory,”
Each Petitioner represents that it either has adopted minimum participant eligibility criteria or is in the process of establishing minimum participant eligibility criteria
ERCOT asserts that it is in the process of developing new eligibility requirements through its stakeholder process, that, as proposed, would require relevant market participants to (i) satisfy minimum capitalization requirements or post additional security, (ii) have appropriate expertise in the market, (iii) maintain a risk management framework appropriate to the ERCOT markets in which it transacts, (iv) have appropriate operational capability to respond to ERCOT direction, and (v) have the market participant's officer certify, on an annual basis, that the participant eligibility requirements are met.
It appears from the foregoing that Petitioners' arrangements with respect to participant eligibility requirements are (or will be) congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle C in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle D requires each DCO to demonstrate the ability to manage the risks associated with discharging the responsibilities of a DCO through the use of appropriate tools and procedures.
Each Petitioner represents that it has established policies and procedures designed to minimize risk.
In addition, an ISO's or RTO's participation standards can include the supervision of a market participant's risk management program.
Petitioners represent that their risk management procedures measure, monitor, and mitigate their credit exposure to market participants.
Petitioners represent that a market participant is required to obtain unsecured credit lines from an RTO or ISO (limited as discussed below) and/or post financial security that is sufficient to meet the participant's estimated aggregate liability
Since FERC regulations 35.47(a) and 35.47(c) appear to manage risk and limit an RTO's or ISO's exposure to potential losses from a market participant, these requirements would appear to be congruent with, and, assuming Petitioners' proposed tariff revisions are implemented, to accomplish sufficiently, the regulatory objectives of Core Principle D in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Each Petitioner represents that it requires a market participant to post additional financial security (collateral) whenever the participant's estimated aggregate liability or credit exposure equals or exceeds that participant's unsecured credit and posted financial security.
FERC regulation 35.47(g) requires ISOs and RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change. However, as stated by FERC, this list of conditions is not meant to be exhaustive, and ISOs and RTOs are permitted to use “their discretion to request additional collateral in response to unusual or unforeseen circumstances.”
As discussed previously, Petitioners represent that each Petitioner requires that market participants maintain unsecured credit and/or post financial security (collectively, “margin”) that is sufficient to meet their estimated aggregate liability or financial obligations at all times,
FERC regulation 35.47(d) requires RTOs and ISOs to either (1) establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC. Otherwise, RTOs and ISOs are prohibited from netting market participants' transactions and required to establish credit based on market participants' gross obligations. FERC regulation 35.47(d), which attempts to ensure that, in the event of a bankruptcy, ISOs and RTOs are not prohibited from offsetting accounts receivable against accounts payable, is congruent with the regulatory objectives of Core Principle D. In effect, this requirement appears to attempt to clarify an ISO's or RTO's legal status to take title to transactions in an effort to establish mutuality in the transactions as legal support for set-off in bankruptcy.
Petitioners have represented that they either are, or plan on becoming, central counterparties.
Subject to this condition, compliance with FERC regulation 35.47(d) appears to be congruent with, and to accomplish sufficiently, Core Principle D's regulatory objectives in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. The Commission also seeks comment with respect to the proposed prerequisite of assurance that the Petitioners can in fact exercise setoff rights in the event of the bankruptcy of a participant.
Among the requirements set forth by Core Principle E are the requirements that a DCO (a) have the ability to complete settlements on a timely basis under varying circumstances, and (b) maintain an adequate record of the flow of funds associated with each transaction that the DCO clears.
Petitioners represent that they have policies and procedures that contain detailed procedures regarding data and record-keeping, and that, with the exception of ERCOT, they have, or will soon have, billing periods and settlement periods of no more than seven days each (for a total of 14 days).
Core Principle F requires a DCO to have standards and procedures designed to protect and ensure the safety of member and participant funds, to hold such funds in a manner that would minimize the risk of loss or delay in access by the DCO to the funds, and to invest such funds in instruments with minimal credit, market, and liquidity risks.
Petitioners represent that they have tariff provisions and related governing documents that accomplish the regulatory goals of DCO Core Principle F.
Core Principle G requires a DCO to have rules and procedures designed to allow for the efficient, fair, and safe management of events when members or participants become insolvent or otherwise default on their obligations to the DCO.
Each Petitioner represents that it has procedures in its tariffs or other governing documents that address events surrounding the insolvency or default of a market participant.
Generally speaking, it is a well-established tenet of clearing that a DCO acts as the buyer to every seller and as the seller to every buyer, thereby substituting the DCO's credit for bilateral counter-party risk. As such, when a DCO is involved, there is little question as to the identity of a counterparty to a given transaction. However, because ISOs and RTOs can act as agents for their participants, there could be ambiguity as to the identity of a counterparty to a given transaction. As a result, in the event of a bankruptcy of a market participant and in the event of a lack of the mutuality of obligation required by the Bankruptcy Code,
The foregoing arrangements appear congruent to, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle G in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle H requires a DCO to (1) maintain adequate arrangements and resources for the effective monitoring and enforcement of compliance with its rules and for resolution of disputes, (2) have the authority and ability to discipline, limit, suspend, or terminate a clearing member's activities for violations of those rules, and (3) report to the Commission regarding rule enforcement activities and sanctions imposed against members and participants.
Each Petitioner represents that it maintains tariffs or procedures or is subject to a regulatory framework that accomplishes the regulatory goals of DCO Core Principle H. Petitioners have,
Based on Petitioners' representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle H in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle I requires a DCO to demonstrate that: (1) It has established and will maintain a program of oversight and risk analysis to ensure that its automated systems function properly and have adequate capacity and security, and (2) it has established and will maintain emergency procedures and a plan for disaster recovery and will periodically test backup facilities to ensure daily processing, clearing and settlement of transactions.
Petitioners represent that they have policies and procedures that accomplish the regulatory goals of DCO Core Principle I,
Based on Petitioners' representations, it appears that these system safeguard practices are congruent with, and accomplish sufficiently, the regulatory objectives of DCO Core Principle I in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle J requires a DCO to provide to the Commission all information that the Commission determines to be necessary to conduct oversight of the DCO.
Based on the foregoing, including Petitioners' representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle J in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle K requires a DCO to maintain records of all activities related to its business as a DCO in a form and manner acceptable to the Commission for a period of not less than five years.
Petitioners represent that their practices satisfy the regulatory goals of DCO Core Principle K because they have adequate recordkeeping requirements or systems.
Based on these regulations and Petitioners' representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle K in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle L requires a DCO to make information concerning the rules and operating procedures governing its clearing and settlement systems (including default procedures) available to market participants.
Each Petitioner represents that it makes its tariff or related governing documents publicly available on its Web site, which, in turn, allows market participants (and the public) to access its rules and procedures regarding, among other things, participant and product eligibility requirements, risk management methodologies, settlement procedures, and other information that may impact prices, such as transmission system models, reserved transmission capacity, and similar information.
Based on Petitioners' representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle L in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle M requires a DCO to enter into and abide by the terms of all appropriate and applicable domestic and international information-sharing agreements, and use relevant information obtained from the agreements in carrying out the DCO's risk management program.
Petitioners represent that they have policies and procedures that allow them to share information with and receive information from other entities as necessary to carry out their risk management functions.
Based on the foregoing and Petitioners' representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle M in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle N requires a DCO to avoid, unless necessary or appropriate to achieve the purposes of the CEA, adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposing any material anticompetitive burden.
As discussed above, the formation of the Petitioners (except for ERCOT) was encouraged by FERC (pursuant to FERC Order Nos. 888 and 2000) in order to foster greater competition in the power generation sectors by allowing open access to transmission lines.
Based on Petitioners' representations, it appears that Petitioners' existence and practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle N. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle O requires a DCO to establish governance arrangements that are transparent to fulfill public interest requirements and to permit the consideration of the views of owners and participants.
Petitioners represent that their tariffs, organizational documents, and applicable state law set forth specific governance standards that are consistent with the regulatory goals which address, for example, director independence and fitness requirements.
Based on Petitioners' representations, it appears that Petitioner's governance structures are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle O in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Pursuant to DCO Core Principle P, each DCO must establish and enforce rules to minimize conflicts of interest in the decision-making process of the DCO.
Each Petitioner represents that it has established a conflict of interest policy in a Code of Conduct or other corporate document that requires board members and employees to, among other things, avoid activities that are contrary to the interests of the Petitioner.
Based upon Petitioners' representations, it appears that the conflict of interest policies Petitioners have adopted and that the requirements Petitioners are subject to are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle P in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
DCO Core Principle Q provides that each DCO shall ensure that the composition of the governing board or committee of the derivatives clearing organization includes market participants.
ERCOT represents that its governing board includes representatives from the market,
Based on Petitioner's representations, and the regulations and supervision of FERC, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle Q in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Core Principle R requires a DCO to have a well-founded, transparent, and enforceable legal framework for each aspect of its activities.
Petitioners assert that they operate under a transparent and comprehensive legal framework that is grounded in the Federal Power Act or the Texas Public Utility Regulatory Act, as applicable, and administered by FERC or the PUCT, as applicable.
Based on Petitioners' representations, it appears that this framework is congruent with, and sufficiently accomplishes, the regulatory objectives of Core Principle R in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 1 requires a SEF to comply with the Core Principles described in part 37 of the Commission's Regulations.
SEF Core Principle 2 requires a SEF to establish and enforce compliance with any rule of the SEF.
Petitioners represent that they have transparent rules for their market, including rules that govern market abuses and compliance enforcement.
Based on the foregoing, it appears that the Petitioners' practices are consistent with, and sufficiently accomplish, the regulatory goals of SEF Core Principle 2 in the context of Petitioners' activities with respect to the Transactions. The Commission requests comment with respect to this preliminary determination.
SEF Core Principle 3 requires a SEF submitting a contract to the Commission for certification or approval to demonstrate that the swap is not readily susceptible to manipulation.
Petitioners define Energy Transactions to include both physically-delivered as well as cash-settled contracts.
Petitioners have represented to the Commission that market participants use the cash-settled Energy Transactions to arbitrage between the Day-Ahead and Real-Time markets.
The Commission understands that MMUs operated by each of the Petitioners have been organized in such a way that both the Real-Time and Day-Ahead markets are monitored to identify suspicious trading activity.
Petitioners represent that they have adequate staff and IT resources to conduct market surveillance.
Based on the Petitioners' representations regarding the surveillance carried out by the MMUs for each Petitioner and the method by which the Day-Ahead and Real-Time auctions are conducted, it appears that Petitioners' policies and procedures to mitigate the susceptibility of Energy Transactions to manipulation are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners' activities with respect to the Energy Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Based upon the Petitioners' representations, the Commission understands FTRs to be cash-settled contracts that entitle the holder to a payment equal to the difference in the price of electricity between two specific nodes.
As previously discussed, both the Petitioners and their respective MMUs conduct market surveillance of both the Real-Time and Day-Ahead markets to identify manipulation of the price of electricity. In the event unusual trading activity is detected by the Petitioners' MMUs, the MMUs will immediately contact FERC, or PUCT in the case of ERCOT, so that an investigation into the unusual activity may begin.
The Commission believes that the Petitioners' policies and procedures should mitigate the susceptibility of FTRs to manipulation and that they are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners' activities with respect to FTRs. The Commission seeks comment with respect to this preliminary conclusion.
In addition to the Petitioners' policies and procedures for the detection of manipulative behavior in connection with FTRs, the Commission notes that since an FTR holder is entitled to a payment based on the price difference between two nodes, and not the physical delivery of electricity, it may be the case that FTRs are difficult to use to manipulate the price of electricity. For instance, the size of a participant's FTR position should not affect the price of electricity established on the Petitioners' Real-Time and Day-Ahead markets and holding an FTR does not provide a means to limit the deliverable supply of electricity. The Commission seeks comment on this evaluation and whether it should be considered in analyzing FTRs under SEF Core Principle 3.
Both Capacity and Reserve Transactions are entered into pursuant to auctions carried out by each of the Petitioners.
The Commission notes that the Petitioners would apply the same oversight policies and procedures to Capacity and Reserve Transactions that they apply to Energy Transactions and FTRs. The Commission believes that these measures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners' activities with respect to Capacity and Reserve Transactions. The Commission seeks comment with respect to this preliminary conclusion.
The Commission also seeks comment on whether the auction procedures used in connection with Capacity and Reserve Transactions could reduce the likelihood for manipulation of such agreements due to the fact that the Petitioners themselves are the only possible counterparty during each auction. For example, when CAISO conducts an auction for Generation Capacity, it is the only party that would enter into the agreement with a CAISO market participant capable of providing the contracted for electricity. CAISO would then call upon the Capacity and Reserve Transaction counterparties to inject electricity into the system when the technical requirements of operating the transmission system deem injection necessary. Accordingly, Capacity and Reserve Transactions seem to be distinguishable from FTRs or Energy Transactions in that they are used exclusively for operational maintenance of the electric transmission system, and not as a means of reducing exposure to price volatility, arbitrage or price discovery. The Commission seeks comment on this analysis of Capacity and Reserve Transactions and whether it should be considered in the Commission's review of these instruments under SEF Core Principle 3.
SEF Core Principle 4 requires a SEF to establish and enforce rules or terms and conditions defining trading procedures to be used in entering and executing orders traded on or through the SEF and procedures for the processing of swaps on or through the SEF.
Generally, the Petitioners have tariffs in place that list how Energy Transactions are to be entered into the trading platform.
The process by which the FTR allocation and auction takes place provides the Petitioners with a basic system that allows the Petitioners to determine which market participants hold FTRs. According to the Petitioners' tariffs, LSEs applying for FTRs during the allocation phase must first establish that they are in fact exposed to load levels for the transmission lines on which they will transmit electricity.
During the auction and secondary market phases, the Petitioners also have systems in place to track which participants hold FTRs. During the auction phase, any credit-worthy member of the RTO or ISO may bid on FTRs. Since the auctions are conducted on the Petitioners' platforms, they will have records of which market participants hold FTRs after the auctions. Once an auction is complete, credit-worthy members may then engage in bilateral transactions to trade FTRs. Again, Petitioners have implemented systems to track these bilateral transactions between FTR holders. Once a bilateral transaction is reported, the Petitioner then performs a credit check to ensure that the new owner of the FTR has the financial capability to assume the risk posed by ownership of the FTR.
Based on the foregoing representations, it appears that the Petitioners' policies and procedures regarding the monitoring of trading and trade processing are consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of Petitioners' activities with respect to FTRs. The Commission seeks comment with respect to this preliminary conclusion.
As discussed above, the auction process used for Capacity and Reserve Transactions differs from the process used in the Real-Time and Day-Ahead markets. Furthermore, Capacity and Reserve Transactions are not used to limit exposure to price volatility, discover prices or engage in arbitrage. The transactions are predominantly bilateral agreements between each Petitioner and certain of that Petitioner's market participants for the provision of electricity in order to meet the technical requirements necessary to operate the electric transmission system. The contracts are not readily susceptible to manipulation and there is no market trading that must be monitored to prevent manipulation or congestion of the physical delivery market. As a result, the Petitioners' policies and procedures regarding the monitoring of trading and trade processing appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of Petitioners' activities with respect to Capacity and Reserve Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 5 requires a SEF to establish and enforce rules that will allow it to obtain any necessary information to perform the functions described in section 733 of the Dodd-Frank Act, provide information to the Commission upon request, and have the capacity to carry-out such international information-sharing agreements as the Commission may require.
SEF Core Principle 6 requires SEFs that are trading facilities, as that term is defined in CEA section 1a(51), to establish position limits or position accountability for speculators, as is necessary and appropriate, for each swap traded on the SEF in order to prevent or reduce the potential threat of market manipulation or congestion, especially during trading in the delivery month.
SEF Core Principle 7 requires a SEF to establish and enforce rules and procedures for ensuring the financial integrity of swaps entered on or through the facilities of the SEF, including the clearance and settlement of swaps pursuant to section 2(h)(1) of the CEA.
Petitioners represent that they ensure the financial integrity of transactions that are entered on or through their markets through the risk management requirements and credit policies that apply to their market participants.
In terms of credit policies, Petitioners represent that they have established “comprehensive and integrated” credit policies to manage credit risk and protect the financial integrity of transactions with market participants.
In addition, based on Petitioners' representations, it appears that Petitioners' policies and procedures include minimum financial standards
As discussed in section V.C. above, FERC regulation 35.47(d) requires RTOs and ISOs to (1) establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC.
As described in section V.D.4.g. above, the Commission is proposing to require that each Petitioner submit a well-reasoned legal memorandum from, or a legal opinion of, outside counsel that, in the Commission's sole discretion, provides the Commission with adequate assurance that the approach selected by the Petitioner will in fact provide the Petitioner with set-off rights in a bankruptcy proceeding. In addition, the Commission is requesting comment on whether ERCOT should be obligated to comply with the requirements of FERC regulation 35.47(d).
Issues regarding risk management requirements, financial standards, and the use of a central counterparty are also addressed within the context of DCO Core Principle D. The Commission's preliminary conclusion that Petitioners policies and procedures are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle D in the context of the Petitioners' activities with respect to the Transactions is relevant in considering SEF Core Principle 7.
Based on the foregoing analysis, including the representations of the Petitioners, Petitioners' policies and procedures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 7 in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 8 requires that SEFs adopt rules to provide for the exercise of emergency authority.
Petitioners represent that their Tariffs generally provide a wide range of authorities to address emergency situations.
Just as the SEFs have rules in place that require them to take emergency actions to protect the markets by “including imposing or modifying position limits, imposing or modifying price limits, imposing or modifying intraday market restrictions, imposing special margin requirements, ordering the liquidation or transfer of open positions in any contract, ordering the fixing of a settlement price,” one
Based on the foregoing representations, it appears that Petitioners' policies and procedures regarding the exercise of emergency authority are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 8 in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 9 requires a SEF to make public timely information on price, trading volume, and other data on swaps to the extent prescribed by the Commission.
Petitioners represent that their Tariffs generally require the timely publication of trading information.
Based on the foregoing representations, it appears that Petitioners' policies and procedures regarding the publication of trading information are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 9 in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
SEF Core Principle 10 requires a SEF to maintain records of all activity relating to the business of the SEF, report such information to the Commission and to keep swaps information open to inspection by the Commission.
Based on the Petitioners representations and the discussion regarding DCO Core Principles J and K above,
SEF Core Principle 11 prevents a SEF from adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposes any material anticompetitive burden, unless necessary or appropriate to achieve the purposes of the Act.
Based on Petitioners' representations and the discussion of DCO Core Principle N above,
SEF Core Principle 12 requires a SEF to establish and enforce rules to minimize conflicts of interest and establish a process for resolving conflicts of interest.
SEF Core Principle 13 requires a SEF to have adequate financial, operational and managerial resources to discharge each responsibility of the SEF.
Petitioners represent that they have rules in place that allow them to collect revenue from market participants
Based on Petitioners' representations and the discussion regarding DCO Core Principle B above,
SEF Core Principle 14 requires a SEF to 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, and automated systems, that are reliable and secure, and have adequate scalable capacity.
Petitioners represent that they have a program of risk analysis and oversight to identify and minimize sources of operational risk through the development of appropriate controls and procedures; reliable automated systems; and emergency procedures.
Petitioners represent that they have computer systems that incorporate adequate business continuity and disaster recovery functionality.
Based on Petitioners' representations and the discussion regarding DCO Core Principle I above,
SEF Core Principle 15 requires that a SEF designate an individual as Chief Compliance Officer, with specific delineated duties.
(A) IN GENERAL.—Each swap execution facility shall designate an individual to serve as a chief compliance officer.
(B) DUTIES.—The chief compliance officer shall—
(i) report directly to the board or to the senior officer of the facility;
(ii) review compliance with the core principles in this subsection;
(iii) in consultation with the board of the facility, a body performing a function similar to that of a board, or the senior officer of the facility, resolve any conflicts of interest that may arise;
(iv) be responsible for establishing and administering the policies and procedures required to be established pursuant to this section;
(v) ensure compliance with this Act and the rules and regulations issued under this Act, including rules prescribed by the Commission pursuant to this section; and
(vi) establish procedures for the remediation of noncompliance issues found during compliance office reviews, look backs, internal or external audit findings, self-reported errors, or through validated complaints.
Based on the Petitioners' representations, it appears that Petitioners' practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 15 in the context of Petitioners' activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion.
Pursuant to the authority provided by section 4(c)(6) of the CEA,
The particular categories of contracts, agreements and transactions to which the Proposed Exemption would apply correspond to the types of transactions for which relief was explicitly requested in the Petition.
The scope of the Proposed Exemption is limited by two additional factors. First, it is restricted to agreements, contracts or transactions where all parties thereto are either: (1) Entities described in section 4(c)(3)(A) through (J) of the CEA
In order to be eligible for the exemption that would be provided by the Proposed Exemption, the agreement, contract or transaction also must be offered or sold pursuant to the “tariff” of a “requesting party” and the tariff must have been approved or permitted to take effect by the PUCT (in the case of ERCOT) or by FERC (in the case of all other Petitioners). This requirement reflects the range of the Commission's authority as set forth in section 4(c)(6)
Consistent with the range of the statutory authority explicitly provided by CEA section 4(c), the Proposed Exemption would extend the exemption to the agreements, contracts or transactions set forth therein and “any person or class of persons offering, entering into, rendering advice or rendering other services with respect to” such transactions. In addition, for as long as the Proposed Exemption would remain in effect, each of the six named Petitioners
“While the ISOs/RTOs operate pursuant to individual tariffs, they share many commonalities in their markets and operations. Although the current market structures of the individual ISOs/RTOs may vary, it is reasonable to expect that each ISO/RTO will, over time, consider offering under its own individual tariff one or more classes of contract, agreement or transaction that is currently offered under any other ISO/RTO tariff. We thus request that each individual exemptive Order apply collectively to each class of contract, agreement or transaction provided by the ISOs/RTOs. This will provide the appropriate breadth to the exemptive Order so that an individual Requestor will not be required to seek future amendments to offer or enter into contracts, agreements or transactions that are currently offered by any other Requestor.”
The Proposed Exemption indicates that, when a final order is issued, it would be made effective immediately. The Commission proposes, however, three conditions precedent to the issuance of a final exemption that may be applicable to one or more specific Petitioners. First, the Commission proposes to refrain from issuing a final order to a specific RTO or ISO unless the RTO or ISO has adopted all of requirements set forth in FERC regulation 35.47;
The Commission's statutorily required determination that the Proposed Exemption is consistent with the public interest and the purposes of the Act was supported, in considerable part, on the grounds that the credit reform policies mandated by FERC regulation 35.47
While all Petitioners have represented that they have fulfilled certain requirements of FERC regulation 35.47, it appears that material gaps in complete execution remain.
Second, the Commission proposes as an additional prerequisite to the issuance of an exemption to an RTO or ISO that the RTO or ISO provide a well-reasoned legal opinion or memorandum from outside counsel that, in the Commission's sole discretion, provides the Commission with assurance that the netting arrangements contained in the approach selected by the particular Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will, in fact, provide the Petitioner with enforceable rights of setoff against any of its market participants under title 11 of the United States Code
There appears to be strong support for the proposition that a central counterparty structure would achieve the mutuality of obligation necessary for enforceable rights of setoff for the central counterparty, and Petitioners have represented that they either are, or plan on becoming, central counterparties.
Third, the Proposed Exemption would be conditioned, as applicable to ERCOT, on the completion of an information sharing agreement, acceptable to the Commission, between the PUCT and the Commission. As with the 2005 Memorandum of Understanding (“MOU”) between the Commission and FERC, as discussed below, the Commission would expect the terms of a CFTC-PUCT MOU to provide that PUCT will furnish information in its possession to the CFTC upon its request and will notify the CFTC if any information requested by it is not in PUCT's possession. As noted above, the Commission is seeking comment on the preconditions set forth above and the costs and benefits thereof.
The Proposed Exemption also contains certain information-sharing conditions. First, the Proposed Exemption is expressly conditioned upon the existing information sharing arrangement between the Commission and FERC, and, as noted above, the completion of an information sharing agreement between the Commission and PUCT. The Commission notes that the CFTC and FERC executed a MOU in 2005 pursuant to which the agencies have shared information successfully.
The Petitioners recognize the need to be responsive to Commission requests for information and “to assist the Commission as necessary in fulfilling its mission under the Act”
Finally, the Proposed Exemption expressly notes that it is based upon the representations made in the Petition and in the supporting materials provided to the Commission by the Petitioners and their counsel and that any material change or omission in the facts and circumstances pursuant to which the Proposed Exemption is granted might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest. The Commission has also explicitly reserved the discretionary authority, to suspend, terminate or otherwise modify or restrict the exemption provided. The reservation of these rights is consistent with prior Commission practice and is necessary to provide the Commission with the flexibility to address relevant facts or circumstances as they arise.
Consistent with the determinations set forth above, the Commission hereby proposes to issue the following Order:
Pursuant to its authority under section 4(c)(6), in accordance with CEA sections 4(c)(1) and (2), of the Commodity Exchange Act (“CEA” or Act”), the Commodity Futures Trading Commission (“CFTC” or “Commission”).
1. Exempts, subject to the conditions and limitations specified herein, the purchase or sale of the electricity-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud, anti-manipulation and enforcement authority under the CEA, including, but not limited to, CEA sections 2(a)(1)(B), 4b, 4c(b), 4
2.
a. The agreement, contract or transaction is for the purchase and sale of one of the following electricity-related products:
(1) The “Financial Transmission Rights” defined in paragraph 5(a) of this Order, except that the exemption shall only apply to such Financial Transmission Rights where:
(a) Each Financial Transmission Right is linked to, and the aggregate volume of Financial Transmission Rights for any period of time is limited by, the physical capability (after accounting for counterflow) of the electricity transmission system operated by a Requesting Party offering the contract, for such period;
(b) The Requesting Party serves as the market administrator for the market on which the Financial Transmission Rights are transacted;
(c) Each party to the transaction is a member of the Requesting Party (or is the Requesting Party itself) and the transaction is executed on a market administered by that Requesting Party; and
(d) The transaction does not require any party to make or take physical delivery of electricity.
(2) “Energy Transactions” as defined in paragraph 5b of this Order.
(3) “Forward Capacity Transactions,” as defined in paragraph 5c of this Order.
(4) “Reserve or Regulation Transactions” as defined in paragraph 5d of this Order.
b. All parties to the agreement, contract or transaction are “appropriate persons,” as defined sections 4(c)(3)(A) through (J) of the CEA or “eligible contract participants” as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m).
c. The agreement, contract or transaction is offered or sold pursuant to a Requesting Party's tariff and that tariff has been approved or permitted to take effect by:
(1) In the case of the Electricity Reliability Council of Texas (“ERCOT”), the Public Utility Commission of Texas (“PUCT”) or
(2) In the case of all other Requesting Parties, the Federal Energy Regulatory Commission (“FERC”).
3.
4.
a. Information sharing: With respect to ERCOT, information sharing arrangements between the Commission and PUCT that are acceptable to the Commission are executed and continue to be in effect. With respect to all other Requesting Parties, information sharing arrangements between the Commission and FERC that are acceptable to the Commission continue to be in effect.
b. Notification of requests for information: With respect to each Requesting Party, neither the tariffs nor any other governing documents of the particular RTO or ISO pursuant to whose tariff the agreement, contract or transaction is to be offered or sold, shall include any requirement that the RTO or ISO notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation.
5.
a. A “Financial Transmission Right” is a transaction, however named, that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference between the price for electricity, established on an electricity market administered by a Requesting Party, at a specified source (
b. “Energy Transactions” are transactions in a “Day-Ahead Market”
(1) The price of the electricity is established at the time the transaction is executed;
(2) Performance occurs in the Real-Time Market by either
(a) Delivery or receipt of the specified electricity, or
(b) A cash payment or receipt at the price established in the Real-Time Market; and
(3) The aggregate cleared volume of both physical and cash-settled energy transactions for any period of time is limited by the physical capability of the electricity transmission system operated by a Requesting Party for that period of time.
c. “Forward Capacity Transactions” are transactions in which a Requesting Party, for the benefit of load-serving entities, purchases any of the rights described in subparagraphs (1), (2) and (3) below. In each case, to be eligible for the exemption, the aggregate cleared volume of all such transactions for any period of time shall be limited to the physical capability of the electricity transmission system operated by a Requesting Party for that period of time.
(1) “Generation Capacity,” meaning the right of a Requesting Party to:
(a) Require certain sellers to maintain the interconnection of electric generation facilities to specific physical locations in the electric-power transmission system during a future period of time as specified in the Requesting Party's Tariff;
(b) Require such sellers to offer specified amounts of electric energy into the Day-Ahead or Real-Time Markets for electricity transactions; and
(c) Require, subject to the terms and conditions of a Requesting Party's Tariff, such sellers to inject electric energy into the electric power transmission system operated by the Requesting Party;
(2) “Demand Response,” meaning the right of a Requesting Party to require that certain sellers of such rights curtail consumption of electric energy from the electric power transmission system operated by a Requesting Party during a future period of time as specified in the Requesting Party's Tariff; or
(3) “Energy Efficiency,” meaning the right of a Requesting Party to require specific performance of an action or actions that will reduce the need for Generation Capacity or Demand Response Capacity over the duration of a future period of time as specified in the Requesting Party's Tariff.
d. “Reserve or Regulation Transactions” are transactions:
(1) In which a Requesting Party, for the benefit of load-serving entities and resources, purchases, through auction, the right, during a period of time as specified in the Requesting Party's Tariff, to require the seller of such right to operate electric facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of a specified quantity of electricity into or from the electric power transmission system operated by the Requesting Party with:
(a) Physical performance by the seller's facilities within a response time interval specified in a Requesting Party's Tariff (Reserve Transaction); or
(b) Prompt physical performance by the seller's facilities (Area Control Error Regulation Transaction);
(2) For which the seller receives, in consideration, one or more of the following:
(a) Payment at the price established in the Requesting Party's Day-Ahead or Real-Time Market, as those terms are defined in paragraphs 5f and 5g of this Order, price for electricity applicable whenever the Requesting Party exercises its right that electric energy be delivered (including Demand Response, ” as defined in paragraph 5c(2) of this Order);
(b) Compensation for the opportunity cost of not supplying or consuming electricity or other services during any period during which the Requesting Party requires that the seller not supply energy or other services;
(c) An upfront payment determined through the auction administered by the Requesting Party for this service;
(d) An additional amount indexed to the frequency, duration, or other attributes of physical performance as specified in the Requesting Party's Tariff; and
(3) In which the value, quantity, and specifications of such transactions for a Requesting Party for any period of time shall be limited to the physical capability of the electricity transmission system operated by the Requesting Party for that period of time.
e. “Day-Ahead Market” means an electricity market administered by a Requesting Party on which the price of electricity at a specified location is determined, in accordance with the Requesting Party's Tariff, for specified time periods, none of which is later than the second operating day following the day on which the Day-Ahead Market clears.
f. “Real-Time Market” means an electricity market administered by a Requesting Party on which the price of electricity at a specified location is determined, in accordance with the Requesting Party's tariff, for specified time periods within the same 24-hour period.
g. “Requesting Party” means California Independent Service Operator Corporation (“CAISO”); ERCOT; ISO New England Inc. (“ISO NE”); Midwest Independent Transmission System Operator, Inc. (“MISO”); New York Independent System Operator, Inc. (“NYISO”) or PJM Interconnection, L.L.C. (“PJM”), or any successor in interest to any of the foregoing.
h. “Tariff.” Reference to a Requesting Party's “tariff” includes a tariff, rate schedule or protocol.
i. “Petition” means the consolidated petition for an exemptive order under 4(c)(6) of the CEA filed by CAISO, ERCOT, ISO NE., MISO, NY ISO and PJM on February 7, 2012, as later amended.
6.
This order is based upon the representations made in the consolidated petition for an exemptive order under 4(c) of the CEA filed by the Requesting Parties
The Regulatory Flexibility Act
Accordingly, the Commission does not expect the Proposed Exemption to have a significant impact on a substantial number of entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the Proposed Exemption would not have a significant economic impact on a substantial number of small entities. The Commission invites the public to comment on whether the entities covered by this Proposed Exemption should be considered small entities for purposes of the RFA, and, if so, whether there is a significant impact on a substantial number of entities.
Commission staff also performed an independent RFA analysis based on Subsector 221 of Sector 22 (utilities companies) which defines any small utility corporation as one that does not generate more than 4 million of megawatts of electricity per year, and Subsector 523 of Sector 52 (Securities, Commodity Contracts, and Other Financial Investments and Related Activities) of the SBA, 13 CFR 121.201 (1-1-11 Edition), which identifies a small business size standard of $7 million or less in annual receipts. Staff concludes that none of the Petitioners is a small entity, based on the following information:
MISO reports 594 million megawatt hours per year,
ERCOT reports 335 million megawatt hours per year,
CAISO reports 200 million megawatts per year,
NYISO reports 17 million megawatts per month, which calculates to 204 megawatts per year,
PJM reports $35.9 billion billed in 2011,
ISO NE reports 32,798 gigawatt hours in the first quarter of 2011, which translates into almost 33 million megawatts for the first quarter of 2011,
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. (“PRA”) are, among other things, to minimize the paperwork burden to the private sector, ensure that any collection of information by a government agency is put to the greatest possible uses, and minimize duplicative information collections across the government. The PRA applies to all information, “regardless of form or format,” whenever the government is “obtaining, causing to be obtained [or] soliciting” information, and includes requires “disclosure to third parties or the public, of facts or opinions,” when the information collection calls for “answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons.” The PRA would not apply in this case given that the exemption would not impose any new recordkeeping or information collection requirements, or other collections of information on ten or more persons that require approval of the Office of Management and Budget (“OMB”).
Section 15(a) of the CEA
As discussed above, in response to a Petition from certain regional transmission organizations and independent system operators, the Commission is proposing to exempt specified transactions from the provisions of the CEA and Commission regulations with the exception of those prohibiting fraud and manipulation (
More specifically, the Commission is proposing to exempt from most provisions of the CEA certain “financial transmission rights,” “energy transactions,” “forward capacity transactions,” and “reserve or regulation transactions,” as those terms are defined in the proposed Order, if such transactions are offered or entered into pursuant to a tariff under which a Petitioner operates that has been approved by FERC or the Public Utility
In the discussion that follows, the Commission considers the costs and benefits of the proposed Order to the public and market participants generally, including the costs and benefits of the conditions precedent that must be satisfied before a Petitioner may claim the exemption.
The Commission's proposed baseline for consideration of the costs and benefits of this Proposed Exemption are the costs and benefits that the public and market participants (including Petitioners) would experience in the absence of this proposed regulatory action. In other words, the proposed baseline is an alternative situation in which the Commission takes no action, meaning that the transactions that are the subject of this Petition would be required to comply with all of the CEA and Commission regulations, as may be applicable. In such a scenario, the public and market participants would experience the full benefits and costs related to the CEA and Commission regulations, but as discussed in detail above, the transactions would still be subject to the congruent regulatory regimes of the FERC and PUCT. In areas where the Commission believed additional requirements were necessary to ensure the public interest, the Commission proposed additional requirements (
The Commission also considers the regulatory landscape as it exists outside the context of the Dodd-Frank Act's enactment. Here too, it is important to highlight Petitioners' representations that each of the transactions for which an exemption is requested is already subject to a long-standing, comprehensive regulatory framework for the offer and sale of such transactions established by FERC, or in the case of ERCOT, the PUCT. For example, the costs and benefits attendant to the Commission's condition that transactions be entered into between “appropriate persons” as described in CEA section 4(c)(3) has an analog outside the context of the Dodd-Frank Act in FERC's minimum criteria for RTO market participants as set forth in FERC Order 741.
In the discussion that follows, where reasonably feasible, the Commission endeavors to estimate quantifiable dollar costs of the Proposed Exemption. The benefits of the Proposed Exemption, as well as certain costs, however, are not presently susceptible to meaningful quantification. Most of the costs arise from limitations on the scope of the proposed Order, and many of the benefits arise from avoiding defaults and their implications that are clearly large in magnitude, but impracticable to estimate. Where it is unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms.
The Proposed Order is exemptive and would provide potentially eligible transactions with relief from the requirements of the CEA and attendant Commission regulations. As with any exemptive rule or order, the proposal is permissive, meaning that Petitioners were not required to request it and are not required to rely on it. Accordingly, the Commission assumes that Petitioners required and would rely on the Proposed Exemption only if the anticipated benefits warrant the costs of the same. Here, the Proposed Exemption identifies certain conditions precedent to the grant of the Proposed Exemption. The Commission is of the view that, as a result of the conditions, Petitioners, market participants and the public would experience minimal, if any, ongoing, incremental costs as a result of these conditions. This is so because, as Petitioners certify pursuant to CFTC Rule 140.99(c)(3)(ii), the attendant conditions are substantially similar to requirements that Petitioners and their market participants already incur in complying with FERC or PUCT regulation.
The first condition—that all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be either “appropriate persons,” as such term is defined in sections 4(c)(3)(A) through (J) of the Act, or “eligible contract participants,” as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m)—should not impose any significant, incremental costs because Petitioners must already incur costs in complying with their existing legal and regulatory obligations under the FPA and FERC or PUCT regulations, which mandate that only eligible market participants may engage in the transactions that are the subject of this proposal, as explained in section V.B.3. above.
The second is that the agreements, contracts or transactions that are covered by the Proposed Exemption must be offered or sold pursuant to a Petitioner's tariff, which has been approved or permitted to take effect by: (1) In the case of ERCOT, the PUCT or; (2) in the case of all other Petitioners, FERC. This is a statutory requirement for the exemption.
Third, as described in section V.B.1. above, FERC and PUCT impose on their respective Petitioners, and their market monitors, various information management requirements. These existing requirements are not materially different from the condition that none of a Petitioner's tariffs or other governing documents may include any requirement that the Petitioner notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation. However, certain existing tariffs (see footnote 406 and accompanying text) may not currently meet the condition; therefore the Commission requests comment as to whether this condition imposes a significant burden or increase in cost on Petitioners with such tariffs, and whether there are alternative conditions that may be used to achieve a similar result. Further, Petitioners have agreed to provide any information to the Commission upon request that will further enable the Commission to perform its regulatory and enforcement duties. While the Commission is mindful that the process of responding to subpoenas or requests for information involves costs, such subpoenas and requests for information, and thus the associated costs, are independent of the current proposed Order.
Fourth, information sharing arrangements that are satisfactory to the Commission between the Commission and FERC, and the Commission and PUCT, must be in full force and effect
Finally, the Commission is proposing to require, as a prerequisite to the granting of the 4(c)(6) request to a particular Petitioner, that the Petitioner provide the Commission with a legal opinion or memoranda of counsel that provides the Commission with assurance that the approach selected by the Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will provide the Petitioner with enforceable rights of setoff against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant. For instance, for transactions in a DCO context, the DCO is clearly the central counterparty. In the case of most ISOs and RTOs, there has been some ambiguity in this regard. As a result of this ambiguity, in the event of the bankruptcy of a participant, there is a concern that ISOs and RTOs may be liable to pay a bankrupt participant for transactions in which that participant is owed funds, without the ability to net amounts owed by the market participant in a bankruptcy, despite the fact that the tariffs submitted by the Petitioners to FERC include explicit language permitting set-off and netting.
In proposing this exemption, the Commission is required by section 4(c)(6) to ensure the same is consistent with the public interest. In much the same way, CEA section 15(a) requires that the Commission consider the benefits to the public of its action. In meeting its public interest obligations under both 4(c)(6) and 15(a), the Commission in sections V.B.1. and V.D. proposes a detailed consideration of the nature of the transactions and FERC and PUCT regulatory regimes, including whether the protections provided by those regimes are, at a minimum, congruent with the Commission's oversight of DCOs and SEFs.
This exercise is not rote; rather, in proposing that this exemption is in the public interest, the Commission's comprehensive action benefits the public and market participants in several substantive ways, as discussed below. In addition, by considering a single application from all Petitioners at the same time, and proposing to allow all provisions of the exemption to apply to all Petitioners and their respective market participants with respect to each category of electricity-related products described in the Petition, regardless of whether such products are offered or entered into at the current time pursuant to an individual Petitioner's tariff, this proposal provides a cost-mitigating, procedural efficiency. The Commission's proposal also reduces the potential need for future amendments to the final exemption in order for one Petitioner to offer or enter into the same type of transactions currently offered by another.
In more substantive terms, by requiring that the transactions at issue are, in fact, limited to those that are administered by the petitioning RTOs/ISOs, and are inextricably linked to the organized wholesale electricity markets that are subject to FERC and PUCT regulation and oversight, the Commission limits the scope of the proposed relief. In so doing, the proposal minimizes the potential that purely financial risk can accumulate outside the comprehensive regime for swaps regulation established by Congress in the Dodd-Frank Act and implemented by the Commission. The mitigation of such risk inures to the benefit of Petitioners, market participants and the public, especially Petitioners' members and electricity ratepayers.
The condition that only “appropriate persons” may enter the transactions that are the subject of this proposal benefits the public and market participants by ensuring that (1) only persons with resources sufficient to understand and manage the risks of the transactions are permitted to engage in the same, and (2) persons without such resources do not impose credit costs on other participants (and the ratepayers for such other participants). Further, the condition requiring that the transactions only be offered or sold pursuant to a FERC or PUCT tariff benefits the public by, for example, ensuring that the transactions are subject to a regulatory regime that is focused on the physical provision of reliable electric power, and also has credit requirements that are designed to achieve risk management goals congruent with the regulatory objectives of the Commission's DCO Core Principles. Absent these and other similar limitations on participant- and financial-eligibility, the integrity of the markets at issue could be compromised and members and ratepayers left unprotected from potentially significant losses. Moreover, the Commission's requirement that Petitioner's file an opinion of counsel regarding the right of set-off in bankruptcy provides a benefit in that the analytical process necessary to formulate such an opinion would highlights risks faced by the Petitioners, and permit them to adapt their structure and procedures in a manner best calculated to mitigate such risks, and thus helps ensure the orderly handling of financial affairs in the event a participant fails as a result of these transactions.
Finally, the Commission's retention of its authority to redress any fraud or manipulation in connection with the transactions at issue protects market participants and the public generally, as
The Commission considered alternatives to the proposed rulemaking. For instance, the Commission could have chosen: (i) Not to propose an exemption or (ii), as Petitioners' requested, to provide relief for
Regarding the first alternative, the Commission considered that Congress, in the Dodd-Frank Act, required the Commission to exempt certain contracts, agreements or transactions from duties otherwise required by statute or Commission regulation by adding a new section that permits the Commission to exempt from its regulatory oversight agreements, contracts, or transactions traded pursuant to an RTO or ISO tariff that has been approved or permitted to take effect by FERC or a State regulatory authority, as applicable, where such exemption was in the public interest and consistent with the purposes of the CEA. Having concluded that the instant exemption meets those tests, the Commission proposes that a no exemption alternative would be inconsistent with Congressional intent and contrary to the public interest. At the same time, however, the Commission believes it would also be inappropriate to adopt the second alternative.
The second alternative would extend the Proposed Exemption to all “logical outgrowths” of the transactions at issue. The Commission proposes that such an exemption would be contrary to the Commission's obligation under section 4(c) of the Act. As noted above, the authority to issue an exemption from the CEA provided by section 4(c) of the Act may not be automatically or mechanically exercised. Rather, the Commission is required to affirmatively determine,
With respect to the four groups of transactions detailed in the Proposed Exemption, the Commission's finding that the Proposed Exemption would be in the public interest and would be consistent with the purposes of the CEA is grounded, in part, on known transaction characteristics and market circumstances described in the Petition that may or may not be shared by other, as yet undefined, transactions engaged in by the Petitioners or other RTO or ISO market participants. Similarly, unidentified transactions might include novel features or have market implications or risks that are beyond evaluation at the present time, and are not present in the specified transactions.
In proposing the exemption as it did, the Commission endeavored to provide relief that was in the public interest. A key component of that consideration is the assessment of how the Proposed Exemption protects market participants and the public. As discussed above, market participants and the public are protected by the existing regulatory structure that includes congruent regulatory goals, and by the four conditions placed upon the proposed relief by requiring,
To the extent that the transactions at issue could have an indirect effect on the efficiency, competitiveness, and financial integrity of the markets subject to the Commission's jurisdiction, the relief is tailored in such a way as to mitigate any such effects. More specifically, the Proposed Exemption is limited to the transactions identified and defined herein. In this way, the Commission eliminates the potential that as-yet-unknown transactions not linked to the physicality of the electric system may be offered or sold under this Proposed Exemption. Further, the Commission's retention of its full enforcement authority will help ensure that any misconduct in connection with the exempted transactions does not jeopardize the financial integrity of the markets under the Commission's jurisdiction.
As discussed above in section V.B.4, with respect to FTRs, Forward Capacity Transactions, and Reserve or Regulation Transactions, these transactions do not directly impact on transactions taking place on Commission regulated markets—they are not used for price discovery and are not used as settlement prices for other transactions in Commission regulated markets
With respect to Energy Transactions, these transactions do have a relationship to Commission regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction. Granting the Proposed Exemption, however, does not mean that these transactions will be unregulated. To the contrary, as explained in more detail above, Petitioners have market monitoring systems in place to detect and deter manipulation that takes place on their markets. Further, as noted above, the Commission retains all of its anti-fraud and anti-manipulation authority as a condition of the Proposed Exemption.
As with the other areas of cost-benefit consideration, the Commission's evaluation of sound risk management practices occurs throughout this release, notably in sections V.D.4.a. and V.E.7.a. which consider the Petitioners' risk
The Commission proposes that because these transactions are part of, and inextricably linked to, the organized wholesale, physical electricity markets that are subject to regulation and oversight of FERC or PUCT, as applicable, the Commission's Proposed Exemption, with its attendant conditions, requirements, and limitations, is in the public interest. In so considering, the Commission proposes that the public interest is best served if the Commission dedicates its resources to the day-to-day oversight of its registrants and the financial markets subject to the CEA.
The Commission invites public comment on its cost-benefit considerations and dollar cost estimates, including the consideration of reasonable alternatives. Commenters are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.
The Commission requests comment on all aspects of its Proposed Exemption. In addition, the Commission specifically requests comment on the specific provisions and issues highlighted in the discussion above and on the issues presented in this section. For each comment submitted, please provide a detailed rationale supporting the response.
1. Has the Commission used the appropriate standard in analyzing whether the Proposed Exemption is in the public interest?
2. The Commission recognizes that there may be differences among the Petitioners with respect to size, scope of business, and underlying regulatory framework. Should any provisions of the Proposed Exemption be modified or adjusted, or should any conditions be added, to reflect such differences?
3. Is the scope set forth for the Proposed Exemption sufficient to allow for innovation? Why or why not? If not, how should the scope be modified to allow for innovation without exempting products that may be materially different from those reviewed by the Commission? Should the Commission exempt such products without considering whether such exemption is in the public interest? Consider this question also with the understanding that any Petitioner (or any entity that is not a current petitioner) may separately petition the Commission for an amendment of any final order granted in this matter.
4. Should the Commission exercise its authority pursuant to section 4(c)(3)(K) of the CEA to extend the Proposed Exemption to agreements contracts or transactions that are entered into by parties other than “appropriate persons” as defined in sections 4(c)(3)(A) through (J) of the CEA, or “eligible contract participants,” as defined in section 1a(18)(A) or (B) of the Act and Commission regulation 1.3(m)? If so, please provide a description of the additional parties that should be included.
a. The Commission specifically seeks comment regarding whether (and, if so, why) it is in the public interest to expand the list of such parties to include market participants who “active[ly] participat[e] in the generation, transmission or distribution of electricity” but who are neither “appropriate persons,” as defined in section 4(c)(3)(A) through (J) of the CEA, nor “eligible contract participants,” as defined in section 1a(18)(A) of the Act and Commission regulation 1.3(m)?
b. If any additional parties should be added, please provide:
(1) An explanation of the financial or other qualifications of such persons or the available regulatory protections that would render such persons “appropriate persons.”
(2) The basis for the conclusion that such parties could bear the financial risks of the agreements, contracts, and transactions to be exempted by the Proposed Exemption.
(3) The basis for the conclusion that including such parties would not have any adverse effect on the relevant RTO or ISO.
(4) The basis for the conclusion that failing to include such parties would have an adverse effect on any relevant RTO or ISO.
5. Should the Commission require each Petitioner that is regulated by FERC to have fully implemented the requirements set forth in FERC Order 741 as a condition precedent to the issuance of a final order granting the Proposed Exemption to the particular Petitioner? Why or why not?
6. Should ERCOT be required to comply with the requirements set forth in FERC Order 741 as a prerequisite to the issuance to ERCOT of a final order granting the Proposed Exemption as to ERCOT? Why or why not?
a. The Commission specifically seeks comment upon whether and why ERCOT would or would not be able to comply with each of the requirements set forth in FERC Order 741. Are any of these requirements inapplicable for an RTO/ISO?
b. Should ERCOT be permitted to adopt alternatives to any of the specific requirements set forth in FERC Order 741 (such as the seven day settlement period in FERC regulation 35.47(b))? What is the basis for the conclusion that the alternative measures would be the equivalents of the FERC requirements in terms of protecting the financial integrity of the transactions that are within the scope of the exemption?
7. Should the Commission require, as a prerequisite to issuing a final order granting the Proposed Exemption to a particular Petitioner, that the Commission be provided with a legal opinion or memoranda of counsel, applicable to the tariffs and operations of that Petitioner, that provides the Commission with assurance that the approach selected by the Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will provide the Petitioner with rights of setoff, enforceable against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant? Why or why not? Are there alternative ways to provide the requisite assurance regarding the bankruptcy protections provided by the approach to 35.47(d) compliance selected by Petitioners and the requisite assurance that the central counterparty structure selected by Petitioners will be consistent or contain elements commonly associated with central counterparties?
8. Should the Commission require the execution of an acceptable information sharing arrangement between the Commission and PUCT as a condition precedent to the issuance to ERCOT of a final order granting the request for an exemption?
9. Should the Proposed Exemption be conditioned upon the requirement that the Petitioners cooperate with the Commission in its conduct of special calls/further requests for information with respect to contracts, agreements or transactions that are, or are related to, the contracts, agreements, or transactions that are the subject of the Proposed Exemption?
10. Should Petitioners be required to have the ability to obtain market data and other related information from their participants with respect to contracts, agreements or transactions in markets
11. What is the basis for the conclusion that Petitioners do, or do not, provide to the public sufficient timely information on price, trading volume, and other data with respect to the markets for the contracts, agreements and transactions that are the subject of the Proposed Exemption? What RTO or ISO tariff provisions, if any, require them to do so or preclude them from doing so?
12. What is the basis for the conclusion that the Proposed Exemption will, or will not, have any material adverse effect on the Commission's ability to discharge its regulatory duties under the CEA, or on any contract market's ability to discharge its self-regulatory duties under the CEA?
13. What are the bases for the conclusions that the Petitioners' tariffs, practices, and procedures do, or do not, appropriately address the regulatory goals of each of the DCO Core Principles?
14. What factors support, or detract from, the Commission's preliminary conclusion that FTRs, Energy Transactions, Capacity and Reserve Transactions are not readily susceptible to manipulation for the reasons stated above? Could a market participant use an FTR to manipulate the price of electricity established on the Day-Ahead and Real-Time markets operated by Petitioners? If so, what is the basis for that conclusion? What is the basis for the conclusion that market participants can, or cannot, use Energy Transactions, Capacity or Reserve Transactions to manipulate electricity prices without detection by Independent Market Monitors?
15. What is the basis for the conclusion that Petitioners have, or have not, satisfied applicable market monitoring requirements with respect to FTRs, Energy Transactions, Capacity and Reserve Transactions? What is the basis for the conclusion that the record-keeping functions performed by Petitioners are, or are not, appropriate to address any concerns raised by the market monitoring process? What is the basis for the conclusion that the market monitoring functions performed by Petitioners and their MMUs do, or do not, provide adequate safeguards to prevent the manipulation of Petitioners' markets?
16. What is the basis for the conclusion that Petitioners, or their participants, should, or should not, be required to satisfy position limit requirements with respect to any of the contracts, agreements or transactions that are the subject of the Proposed Exemption? Specifically, what is the basis for the conclusion that it is, or is not, possible for Petitioners, or their participants, to violate position limits with FTRs or Virtual Bids? What is the basis for the conclusion that the nature of FTRs or Virtual Bids do, or do not, inherently limit the ability of market participants to engage in manipulative conduct?
17. What are the bases for the conclusions that Petitioners do, or do not, adequately satisfy the SEF requirements for (a) recordkeeping and reporting, (b) preventing restraints on trade or imposing any material anticompetitive burden, (c) minimizing conflicts of interest, (d) providing adequate financial resources, (e) establishing system safeguards and (f) designating a CCO? Specifically, do the procedures and principles in place allow the Petitioners to meet the requirements of SEF core principles 10-15?
18. What is the basis for the conclusion that the Petitioners' eligibility requirements for participants are, or are not, appropriate to ensure that market participants can adequately bear the risks associated with the Participants markets?
19. What is the basis for the conclusion that Petitioners do, or do not, have adequate rules in place to allow them to deal with emergency situations as they arise? What deficiencies, if any, Are there with respect to their emergency procedures that would prevent any Petitioner from taking necessary action to address sudden market problems?
20. The Commission invites comment on its consideration of the costs and benefits of the Proposed Exemption, including the costs of any information requirements imposed therein. The Commission also seeks comment on the costs and benefits of this Proposed Exemption, including, but not limited to, those costs and benefits specified within this proposal. Commenters are also are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Sommers, Chilton, O'Malia and Wetjen voted in the affirmative; no Commissioner voted in the negative.
I support the proposed relief from the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) swaps provisions for certain electricity-related transactions entered into on markets administered by regional transmission organizations (RTOs) or independent system operators (ISOs). The relief responds to a petition filed by a group of RTOs and ISOs.
Congress directed the CFTC, when it is in the public interest, to provide relief from the Dodd-Frank Act's swaps market reform provisions for certain transactions on markets administered by RTOs and ISOs.
These entities were established for the purpose of providing affordable, reliable electricity to consumers within their geographic region. They are subject to extensive regulatory oversight by the Federal Energy Regulatory Commission (FERC), or in one instance, by the Public Utility Commission of Texas (PUCT). In addition, these markets administered by RTOs and ISOs are central to FERC and PUCT's regulatory missions to oversee wholesale sales and transmission of electricity.
The scope of the proposed relief extends to the petitioners for four categories of transactions—financial transmission rights, energy transactions, forward capacity transactions, and reserve or regulation transactions. Each of these transactions are inextricably linked to the physical delivery of electricity.
I look forward to receiving public comment on the proposed relief.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to amend the inland navigation rules and their annexes in 33 CFR parts 83 through 88 to align the regulations with amendments made by the International Maritime Organization to the Convention on the International Regulations for Preventing Collisions at Sea, to which the United States is a signatory, and to incorporate recommendations made by the Navigation Safety Advisory Council. These changes would harmonize domestic and international law by reducing and alleviating equipment requirements on vessels, addressing technological advancements, such as wing-in-ground craft, and increasing public awareness of the inland navigation rules. The changes would also make references to applicable requirements easier to locate by using the same format in domestic regulations as is used in the international convention.
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG-2012-0102 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email LCDR Megan L Cull, Coast Guard; telephone 202-372-1565, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0102), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or
We do not now plan to hold a public meeting. But you may submit a request for one to the docket using one of the methods specified under
The purpose of this rulemaking is to harmonize existing domestic law with current international law because Coast Guard regulations relating to inland navigation rules are inconsistent with the international standards found in the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), to which the United States is a signatory. In addition to the alignment with international standards, the Navigation Safety Advisory Council (NAVSAC) recommended several changes to the regulations that would simplify the inland navigation rules and change equipment requirements for certain vessels. The Coast Guard has initiated this rulemaking under the authority of the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) and the Department of Homeland Security Delegation 0170.1, Delegation to the Commandant of the Coast Guard.
In 1972, the International Maritime Organization (IMO) formalized the COLREGS, or international rules. The United States ratified this treaty and adopted the COLREGS in the International Navigation Rules Act of 1977. Ratification of this treaty made all U.S. vessels subject to the COLREGS while operating on international waters. The corresponding rules for inland waters, or inland navigation rules, did not go into effect until Congress enacted the Inland Navigational Rules Act of 1980. The inland navigation rules and the COLREGS are very similar in both content and format.
The IMO has made several amendments to the COLREGS since they were promulgated in 1972. The United States has adopted these amendments through statute until the two most recent IMO amendments in 2001 and 2007. Incorporation of these IMO amendments is one of the purposes of this Notice of Proposed Rulemaking (NPRM).
In 2004, Congress passed the Coast Guard and Maritime Transportation Act of 2004, which, in effect, gave the Secretary of Homeland Security (“the Secretary”) the authority to issue inland navigation regulations. The Secretary further delegated the authority to develop and enforce navigation safety regulations to the Commandant of the Coast Guard through Department of Homeland Security Delegation 0170.1, “Delegation to the Commandant of the Coast Guard.”
Through the most recent regulatory change in 2010, the Coast Guard used the authority granted by Congress and delegated by the Secretary to move the inland navigation rules from the United States Code (U.S.C.) to 33 CFR part 83. 75 FR 19544. Regulations in 33 CFR part 83, along with regulations in 33 CFR parts 84 through 88, now comprise the complete domestic inland navigation rules. Movement to the CFR in 2010 effectively ended statutory codification of the inland rules of the road.
Using this authority, the Coast Guard proposes to amend 33 CFR part 83, along with 33 CFR parts 84 through 88, to align U.S. inland navigation rules with the COLREGS as much as practicable and to incorporate other NAVSAC recommendations and Coast Guard changes.
This NPRM proposes many changes to the regulations in 33 CFR parts 83, 84, 85, 86, 87, and 88 that would preempt State and local law regarding inland navigation, make current regulations more consistent with international standards, and make other NAVSAC recommended changes, including mandating the use of other electronic equipment, such as AIS, if outfitted, and allowing certain small vessels to use an all-round white light in addition to the currently approved electric torch or lighted lantern. Many of these changes would reduce the regulatory burden on mariners. The proposed changes are described below.
On May 20, 2009, President Obama issued a memorandum entitled “Preemption” to the heads of executive agencies. The purpose of this memorandum was to ensure that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” The memorandum also required agencies to include preemption provisions in the codified regulations when regulatory preambles discussed its intention to preempt State law through the regulation. Furthermore, it directed that these preemption provisions must be justified under the legal principles governing preemption, including those outlined in EO 13132 (this memorandum is available for viewing in the rulemaking docket by following the instructions under the “Public Participation and Request for Comments” section of this preamble).
In 33 U.S.C. 2071, Congress specifically granted to the Secretary the authority to “issue inland navigation regulations applicable to all vessels upon the inland waters of the United States and technical annexes that are as consistent as possible with the respective annexes to the International Regulations.” Because this authority is expressly granted by Congress to the Secretary, State and local laws are preempted by Federal law. Therefore, based on the President's 2009 memo and the preemption principles outlined in EO 13132, the Coast Guard proposes to add the following sentence to 33 CFR 83.01(a): “The regulations in this subchapter have preemptive effect over State or local regulation within the same field.”
Prior to 2010, the inland navigation rules were located in statute. The Coast Guard promulgated five annexes through regulation, to be read in conjunction with the inland navigation statute. These annexes correspond to COLREGS annexes. Because the inland navigation rules have become regulation, NAVSAC recommended that sections of Annex V be relocated to the
We propose to move these provisions without substantive change to the appropriate sections in part 83. Reorganizing the Annex II and Annex V provisions to be found in part 83 would ease compliance and simplify the study of the rules. As a result of moving the provisions of these annexes to part 83, paragraph (d) in section 83.26 must be removed and reserved. This paragraph speaks to the provisions of Annex II that have now been moved to part 83. Additionally, for clarity, the appropriate paragraphs of Rule 26 must be added to new paragraph (f) of section 83.26 in lieu of the more general “these Rules” currently found in the regulation.
Table 1 summarizes the movement of 33 CFR part 85, Annex II, and 33 CFR part 88, Annex V, provisions to 33 CFR part 83.
There would no longer be any provisions in part 85, Annex II, or part 88, Annex V, except for provisions reserving these parts for any future amendments that may require their use. To this end, the general purpose and applicability provisions of parts 85 and 88 would be reserved. This would be done by removing all regulations from this part and reserving the first sections only as a placeholder. Therefore, 33 CFR 85.1 would be redesignated as § 85.01, and § 85.01 would then be reserved, along with § 88.01.
In 2001 and 2007, the IMO adopted several amendments to the COLREGS through Resolution A.910(22) and Resolution A.1004(25), respectively. NAVSAC recommended that, in the interests of uniformity and simplification for mariners, and to continue encouraging compliance with the COLREGS, the Coast Guard should adopt these amendments in regulation. The amendments that NAVSAC recommended and the Coast Guard proposes are as follows:
1. The IMO incorporated the term “Wing-In-Ground (WIG) craft” into several sections of the COLREGS and added requirements applicable to this type of craft. The following sections in part 83 would be amended to add this term and/or its definition or add requirements applicable to WIG craft: §§ 83.03(a), 83.03(m), 83.18(f), 83.23(c), and 83.31. These additions specify how WIG craft should operate around other vessels, including when taking off, landing, and when in flight, as well as lighting requirements specific to WIG craft. Current WIG craft operations are limited to prototype testing, feasibility studies, and other limited activities. However, the specific construction, design, and operation of WIG craft pose unique risks that we are trying to address while also conforming to the IMO standard.
2. The IMO modified COLREGS sound signal equipment requirements for vessels based on size. One amendment removes the requirement for a bell on a vessel of 12 meters or more in length but less than 20 meters in length. The other amendment reduces the regulatory restrictions placed on the characteristics of whistles allowed for vessels of specific lengths. The Coast Guard would add the same language to §§ 83.33(a) and 83.35(i). We would also amend the existing language in part 86, subpart A. This language consists of amendments that IMO believes cater to smaller vessels since these amendments provide regulatory flexibility for sound signal requirements. We concur—by following IMO's example, we also would be decreasing the regulatory burden for small vessels by allowing sound options without negatively impacting navigation safety.
3. The IMO amended existing sections of COLREGS to incorporate new formulas and new standards. Sections 84.13(a), 84.13(b), 86.01(a), 86.01(c), 86.02(b) and the Table in 86.01 would be partially amended to align with the new COLREGS language. Sections 84.13(a) and 84.13(b) would be amended to account for the vertical separation of masthead lights on high-speed craft. These amendments incorporate new formulas to accommodate novel designs in the trim and resulting masthead placement of these specific types of crafts. By changing these formulas, the masthead light would be more visible, thereby increasing the safety of these vessels. In section 86.01 and 86.02, we would amend the frequency and range of audibility standards to relax the requirements for sound pressure levels and octave bands. We believe that the safety of vessels is not measurably impacted by the differing standards and that aligning domestic regulations with the international standard eases compliance.
4. The IMO amended COLREGS Rule 8, paragraph (a), which corresponds to § 83.08(a), and which generally governs actions taken to avoid collision, by adding the requirement that such actions “be taken in accordance with the Rules of this part.” The IMO added this language to make clear that any action to avoid collision should be taken in accordance with the relevant rules in the COLREGS, and to link Rule 8 with the other navigation rules. We propose to amend § 83.08(a) to include this revised language.
5. The IMO modified COLREGS distress signal requirements to update technologies in its list of acceptable equipment. Section 84.01(d), (l), and (m) would be amended to eliminate radiotelegraph or radiotelephones alarms as approved distress calls, with the exception of SOS, which may be transmitted via any means. Radiotelephones can still be used, but not the radiotelephone alarm function. There are no costs associated with removing the alarms as approved distress calls because this change does
The search and rescue manual reference in paragraph 3 has also been updated. There is no cost to the change in reference because there is no requirement to purchase the manual.
6. Rule 24 of the COLREGS provides lighting and shape requirements for partially submerged vessels or objects being towed, or a combination thereof. In review of our regulations, the lighting and shape requirements for towed combinations were omitted. We propose to add this language to match the COLREGS.
There would be no additional requirements on mariners imposed by the additions and amendments in 1 through 6 above. Instead, these sections would conform to the international standards and provide more options for vessel equipment compliance and increase the clarity of these requirements.
NAVSAC recommended a change to the existing inland navigation rules in which § 83.07(b) would be amended to add the words “and other electronic” following the word “radar.” The Coast Guard agrees. In 2003, we published a final rule mandating the use of Automatic Identification Systems (AIS) on a large number of seagoing vessels. The use of AIS is also a SOLAS requirement. Therefore, adding the words “and other electronic” equipment to this section would be consistent with the AIS final rule by requiring vessels that are otherwise required to have an AIS to use the system for collision avoidance in accordance with inland navigation rules. No additional equipment is required by vessels as a result of this change. Those vessels required by 33 CFR 164.46, or those electing to carry, an AIS are instructed to utilize this tool for collision avoidance purposes. This description would also allow for future development and use of technology that would meet Coast Guard requirements.
The National Boating Safety Advisory Committee (NBSAC) proposed several options to the Coast Guard to reduce the risk of vessel collisions. One of the options that NBSAC proposed was to enhance the visibility of smaller vessels and sailing vessels. NAVSAC agreed with the NBSAC proposal and recommended that the Coast Guard add the option of using an all-round white light as a means for vessels of less than 7 meters or vessels under oars to advertise their position and help prevent collisions. Therefore, in § 83.25(d)(1) and (2), we propose to add the following phrase as an option for lighting: “exhibit an all-round white light or.”
In current 33 CFR 83.26, which concerns lights on vessels engaged in fishing other than trawling, there are two contradictory paragraphs, both of which are labeled as paragraph (c). The second paragraph (c) is the correct version and would remain in this section. We propose to remove the contradictory paragraph (c), currently appearing first in the regulations, to avoid confusion or inability to choose the correct lighting and shapes.
In Rule 1, section 83.01, paragraph (b)(i), we propose to add the following after Regulations: “for Preventing Collisions at Sea, 1972, including annexes currently in force for the United States (“International Regulations”).” This language would clarify what international regulations we are referring to throughout the regulation.
Based on the movement of some provisions, addition of new terms, and for ease of reference in locating applicable rules, several proposed changes would involve re-numbering or correcting cites in 33 CFR parts 83 through 88.
Sections 83.03(n) through 83.03(r) and 83.23(d) through 83.23(e) would be re-lettered following the insertion of the WIG craft language. Section 83.35(j) and 83.35(k) would be re-lettered following the insertion of additional vessel applicability language.
Section 83.24(c) would be amended to reference the correct cite to (i) instead of (1). Paragraph (b) in § 83.08 would be amended to add “and/” after “course” in both instances so as to correspond to COLREGS language.
To correspond to COLREGS numbering, § 83.18(d) would be reserved, thereby requiring the current paragraph (d) to be re-lettered as (e). Sections 83.03(h), 83.26(g)(ii)(2), and 83.35(d) are also reserved to correspond to COLREGS which also necessitate changes in paragraph lettering.
Parts 84 through 88, collectively the annexes, would be re-numbered in their entirety to correspond to the COLREGS numbering system because all inland navigation rules have been moved into the CFR. Two of the annexes, parts 85 and 88, would be reserved for use at a later date because the provisions of these annexes would be moved to part 83. Citations to the applicable annexes would be added to the following for easy reference: §§ 83.22, 83.27, 83.32, 83.33, 83.34, 83.37, and 83.38.
In addition to the other non-substantive changes, numbers would be replaced with roman numerals, lists would begin with lowercase letters, headings would be removed, and terms in the definition sections would be italicized instead of using quotations to model the domestic format after the international format. The format changes are necessary to reduce confusion for the maritime community by making the domestic and international rules uniform. Additionally, the non-substantive changes would make for easy reference of the domestic and international rules because the numbering scheme would be identical to the extent practicable.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below, we summarize our analyses based on 14 of these statutes or executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the 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
As stated in section
Alternative 1—No Action. We rejected this alternative, as this alternative would ensure that the current differences between the domestic and international navigation rules continue, creating potential navigational errors and potential for mishaps, and would not be consistent with the Coast Guard's commitment to conform the inland navigation rules with the COLREGs as much as practicable. The proposed alternative incorporates regulations that are less stringent than the current regulations while maintaining the benefits of the current regulations.
Alternative 2—Incorporation of burden increasing NAVSAC recommendations. Alternative 2 would include all the changes in the proposed alternative and two additional changes recommended by NAVSAC. Those additional changes, which would increase the burden on the regulated community and expand the affected population, are as follows:
1. Lighting of gas pipelines (33 CFR 88.15). A 1991 NAVSAC resolution proposed lighting gas pipelines in a manner similar to that done with dredge pipelines as described in 33 CFR 88.15. However, the Department of Transportation's Pipeline and Hazardous Material Safety Administration has since published regulations affecting some of the gas pipelines that necessitated the original NAVSAC resolution. Additional study is now needed to determine if current regulations have effectively decreased the number of incidents and whether further Coast Guard regulatory action is required.
2. The requirement that vessels greater than 16 feet must carry the inland navigation rules booklet. This provision would expand the population of vessels that must carry a copy of the inland navigation rules from vessels 12 meters (approximately 39.37 feet) or more in length to vessels more than 16 feet long. The Coast Guard rejects this recommendation due to a lack of quantifiable benefits to justify a high regulatory burden on recreational vessels at this time.
Vessels affected by this proposed rule would be vessels traveling on inland waters of the United States. At this time, we anticipate a small additional cost for future WIG craft to install a light. We estimate that there would not be additional costs or burden from the other harmonizing or discretionary provisions. A benefit of the harmonizing provisions is complying with COLREGS and the Presidential memo,. Both harmonizing and discretionary provisions would also provide regulatory flexibility to certain vessels. Some of the discretionary changes may help to reduce risk of collision. A summary of the Regulatory Analysis is provided in Table 2.
This proposed rule would affect vessels on inland waters of the United States. Some of the provisions in this proposed rule would affect specific subgroups of these vessels. Population groups and subgroups affected by this proposed rule are listed in Table 3.
This proposed rule would modify various sections of 33 CFR parts 83 through 88 to align domestic regulations with COLREGS, as much as practicable, and to incorporate NAVSAC recommendations. In Table 4, we provide a summary of the impacts, grouped by provision type and then affected population. Please refer to the regulatory text for specific changes.
As stated in section
Most of the provisions harmonize the CFR with COLREGs by moving sections to different locations, renumbering, or reformatting.
A more detailed description of these changes is outlined in the following paragraphs. One other harmonizing change adds a preemption provision explaining that the codified regulation preempts state or local law within the same field. This provision complies with the Presidential memorandum and EO 13132, which requires executive agencies to ensure that its preemption statements have a sufficient legal basis and to make explicit in the codified regulation its intention to preempt State law, but does not change the compliance standards for vessels.
Given the existence of prototype testing and the possibility of one being successful, we estimate that there may be one new vessel operating on inland waters in any given year.
We then calculated cost to install the required light for WIG craft masthead light based on the growth rate (one vessel annually), multiplied by the cost of the light (one light required per vessel), and determined that this section of the proposed rule would provide a total undiscounted cost of $1,119.
Table 8 provides the breakdown of cost, both undiscounted and discounted (at 3 and 7 percent rates), over the 10-year period of analysis.
In order to estimate the cost savings from not installing bells, we took a high range cost and a low range cost to calculate the average retail price of a bell ($299) to represent potential costs incurred by the owner should the owner choose to purchase and install a bell.
Table 8 provides the breakdown of cost savings, both undiscounted and discounted (at 3 and 7 percent rates), over the 10-year period of analysis.
For whistles used on vessels of less than 75 meters in length, the acceptable range for frequencies would be expanded. This provision does allow for the purchase of whistles that sound in the newly expanded ranges. The required sound pressure levels for vessels of 20 meters or more in length would also be relaxed. Currently, whistles for these vessels need to project the appropriate sound pressure levels measured at multiple frequency ranges. Our proposed rule would require the whistle to obtain a single minimum sound pressure level, which is based on the vessel's length, and is measured at only one frequency range.
There would be no cost for this provision as this does not require the replacement of an existing whistle as those would still be within the proposed standards. Instead, purchasers of new whistles would have greater whistle options.
Other harmonizing changes to the CFR are non-substantive and simply align current regulations to match the formatting of COLREGS (refer to Table 4 for the summary of these non-substantive changes). Overall, we estimate that the harmonizing provisions of this proposed rule would have no cost to industry.
As noted above, there is a second category of changes being proposed by this NPRM, which recommendations from NAVSAC. These changes represent discretionary actions on the part of the Coast Guard. The recommended changes from NAVSAC allow for the use of additional equipment as a means of reducing risk of collision. Specifically, NAVSAC recommended the optional use of an all-round white light. NAVSAC also recommended changes to navigation requirements. Vessels would have the option of using the latest technology in navigational equipment besides radar, requiring that if such equipment is installed, it must be used for collision avoidance. As optional requirements, the Coast Guard anticipates that only those vessel owners/operators that foresee a benefit (safety or otherwise) greater than costs would install such a light—neither of these costs nor benefits are estimated here. Also, because neither of these changes would require the purchase of new equipment, they do not carry any costs.
One final change proposed by this NPRM is to correct contradictory requirements that currently exist in the CFR regarding the placement of lights. 33 CFR 83.26 Paragraph (c) defines the lights used by a vessel engaged in fishing other than trawling. The first paragraph (c), which was correct in U.S.C. and only was inadvertently changed in 2010 when the Inland Navigation Rules were transferred to CFR, describes the lights for vessels engaged in trawling which are correctly defined in paragraph (b). The second paragraph (c) correctly describes the lights required by vessels engaged in fishing other than trawling. Should vessel owners try to comply with both requirements, there would be no replacement cost because they would be complying with the correct one. In the event that vessel owners were confused as to which paragraph (c) to follow, we assume that owners would have verified which one by checking COLREGS. Since this change will not require the purchase of additional equipment, but rather reduce confusion in regulation, this change would not require an additional cost burden to vessel owners.
Since the overall impact of this proposed rule is to relax existing requirements on certain vessels, the only cost in this proposed rule is the cost to install an all-round red light on future WIG craft. Since the remaining changes would not involve a change in compliance standards, there are no costs associated with the other requirements.
Benefits from harmonizing current inland navigation rules with the COLREGS would be ensuring that the United States, as a signatory to the COLREGS, aligns its domestic regulations as close as practicable to the international standards. Publishing these regulations in the CFR provides greater awareness to the public of changes to the COLREGS and allows for greater public input in terms of its application to inland navigation. Modifying the format and numbering of the regulations to match the formatting and numbering of COLREGS allows for ease of use in terms of referencing either document for requirements.
The more significant COLREGS changes primarily expand current options available for vessels to use, particularly for those dealing with lighting and sound. As a result, vessel owners or operators would find it easier to comply with the proposed regulations than with the existing ones.
Specific benefits from the more significant COLREGS changes are as follows:
1.
2.
This proposed rule also includes benefits from incorporating NAVSAC and NBSAC recommended regulations. NAVSAC recommended the optional use of an all-round white light. Should owners opt to install an all-round white light to a vessel of less than 7 meters in length or a vessel under oars, the benefit would be greater visibility for that vessel. Greater visibility would reduce the risk of collision, particularly in the period between sunset and sunrise and during periods of reduced visibility.
NAVSAC also recommended changes to navigation requirements, such as requiring vessels to use navigation technology for collision avoidance purposes. Adopting the requirement to use already installed navigational technology for collision avoidance purposes reduces the risk of a collision.
Finally this NPRM proposes fixing an erroneous, contradictory provision in the regulations. Removing the contradictory paragraph provides a clear standard that vessel owners can follow.
All of these recommendations would provide greater regulatory flexibility as a means of reducing risk of collision.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
As discussed in the cost section of this regulatory analysis, the primary purpose of this proposed rule is to align existing domestic law with international law, but there are also discretionary proposals included in this NPRM. Compliance with both harmonizing and discretionary provisions would not require any additional burden to vessel owners, including small entities. Most harmonizing changes would be made to use consistent formatting between the CFR and COLREGS, which in turn provides ease of use for owners. New vessels would have greater options in terms of lighting modifications, navigation equipment, and sound equipment.
Discretionary changes would also provide greater regulatory flexibility to small entities in terms of allowing the use of optional lighting and additional navigational equipment. We conclude that there would be no additional costs to small entities complying with this proposed rule. There would be a cost savings for vessel manufacturers who would no longer need to install a bell for vessels of equal to or more than 12 meters, but less than 20 meters, in length. The only cost of the proposed rule would be for one new WIG craft a year to install an all-round, high-intensity red light for about $112.
As there are small costs and a net cost savings associated with this proposed rule, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult LCDR Megan Cull by phone at, (202) 372-1565 or via email at
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).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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.
It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. In 33 U.S.C. 2071, Congress specifically granted to the Secretary the authority to prescribe “inland navigation regulations applicable to all vessels upon the inland waters of the United States and technical annexes that are as consistent as possible with the respective annexes to the International Regulations.” As this proposed rulemaking would update existing inland navigation regulations, it falls within the scope of authority Congress granted exclusively to the Secretary and States may not regulate within this category.
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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not 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 proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Coast Guard has analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Coast Guard has 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 National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under 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 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This rule is likely to be categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(i) of the Instruction and 6(a) of the
Navigation (water), Waterways.
Incorporation by reference, Navigation (water), Waterways.
Fishing vessels, Navigation (water), Waterways.
Navigation (water), Waterways.
Navigation (water), Waterways.
Navigation (water), Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 83 through 88 as follows:
1. Revise part 83 to read as follows:
Sec. 303, Pub. L. 108-293, 118 Stat. 1028 (33 U.S.C. 2001); Department of Homeland Security Delegation No. 0170.1.
(a) These Rules apply to all vessels upon the inland waters of the United States, and to vessels of the United States on the Canadian waters of the Great Lakes to the extent that there is no conflict with Canadian law. The regulations in this subchapter have preemptive effect over State or local regulation within the same field.
(b)(i) These Rules constitute special rules made by an appropriate authority within the meaning of Rule 1(b) of the International Regulations for Preventing Collisions at Sea, 1972, including annexes currently in force for the United States (“International Regulations”).
(ii) All vessels complying with the construction and equipment requirements of the International Regulations are considered to be in compliance with these Rules.
(c) Nothing in these Rules shall interfere with the operation of any special rules made by the Secretary of the Navy with respect to additional station or signal lights and shapes or whistle signals for ships of war and vessels proceeding under convoy, or by the Secretary with respect to additional station or signal lights and shapes for fishing vessels engaged in fishing as a fleet. These additional station or signal lights and shapes or whistle signals shall, so far as possible, be such that they cannot be mistaken for any light, shape, or signal authorized elsewhere under these Rules. Notice of such special rules shall be published in the
(d) Traffic separation schemes may be established for the purpose of these Rules. Vessel traffic service regulations may be in effect in certain areas.
(e) Whenever the Secretary determines that a vessel or class of vessels of special construction or purpose cannot comply fully with the provisions of any of these Rules with respect to the number, position, range, or arc of visibility of lights or shapes, as well as to the disposition and characteristics of sound-signaling appliances, the vessel shall comply with such other provisions in regard to the number, position, range, or arc of visibility of lights or shapes, as well as to the disposition and characteristics of sound-signaling appliances, as the Secretary shall have determined to be the closest possible compliance with these Rules. The Secretary may issue a certificate of alternative compliance for a vessel or class of vessels specifying the closest possible compliance with these Rules. The Secretary of the Navy shall make these determinations and issue certificates of alternative compliance for vessels of the Navy.
(f) The Secretary may accept a certificate of alternative compliance issued by a contracting party to the International Regulations if it determines that the alternative compliance standards of the contracting party are substantially the same as those of the United States.
(g) The operator of each self-propelled vessel 12 meters or more in length shall carry on board and maintain for ready reference a copy of these Rules.
(a) Nothing in these Rules shall exonerate any vessel, or the owner, master, or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.
For the purpose of these Rules and this chapter, except where the context otherwise requires:
(a) The word
(b) The term
(c) The term
(d) The term
(e) The word
(f) The term
(g) The term
(i) A vessel engaged in laying, servicing, or picking up a navigation mark, submarine cable, or pipeline;
(ii) A vessel engaged in dredging, surveying, or underwater operations;
(iii) A vessel engaged in replenishment or transferring persons, provisions, or cargo while underway;
(iv) A vessel engaged in the launching or recovery of aircraft;
(v) A vessel engaged in mine clearance operations; and
(vi) A vessel engaged in a towing operation such as severely restricts the towing vessel and her tow in their ability to deviate from their course.
(h) [Reserved]
(i) The word
(j) The words
(k) Vessels shall be deemed to be in sight of one another only when one can be observed visually from the other;
(l) The term
(m) The term
(n)
(o)
(p)
(q)
(r)
(s)
Rules in this subpart apply in any condition of visibility.
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) The state of visibility;
(ii) The traffic density including concentration of fishing vessels or any other vessels;
(iii) The maneuverability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions;
(iv) At night, the presence of background light such as from shores lights or from back scatter of her own lights;
(v) The state of wind, sea, and current, and the proximity of navigational hazards; and
(vi) The draft in relation to the available depth of water.
(b) Additionally, by vessels with operational radar:
(i) The characteristics, efficiency and limitations of the radar equipment;
(ii) Any constraints imposed by the radar range scale in use;
(iii) The effect on radar detection of the sea state, weather, and other sources of interference;
(iv) The possibility that small vessels, ice and other floating objects may not be detected by radar at an adequate range;
(v) The number, location, and movement of vessels detected by radar; and
(vi) The more exact assessment of the visibility that may be possible when radar is used to determine the range of vessels or other objects in the vicinity.
(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
(b) Proper use shall be made of radar and other electronic equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.
(c) Assumptions shall not be made on the basis of scanty information, especially scanty radar information.
(d) In determining if risk of collision exists the following considerations shall be among those taken into account:
(i) Such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; and
(ii) Such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.
(a) Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.
(c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.
(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.
(e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.
(f)(i) A vessel which, by any of these Rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel.
(ii) A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the Rules of this part.
(iii) A vessel the passage of which is not to be impeded remains fully obliged to comply with the Rules of this part when the two vessels are approaching one another so as to involve risk of collision.
(a)(i) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as is safe and practicable.
(ii) Notwithstanding paragraph (a)(i) of this Rule 9 and Rule 14(a) (33 CFR 83.14(a)), a power-driven vessel operating in narrow channels or fairways on the Great Lakes, Western Rivers, or waters specified by the Secretary, and proceeding downbound with a following current shall have the right-of-way over an upbound vessel, shall propose the manner and place of passage, and shall initiate the maneuvering signals prescribed by Rule 34(a)(i) (33 CFR 83.34(a)(i)), as appropriate. The vessel proceeding upbound against the current shall hold as necessary to permit safe passing.
(b) A vessel of less than 20 meters in length or a sailing vessel shall not impede the passage of a vessel that can safely navigate only within a narrow channel or fairway.
(c) A vessel engaged in fishing shall not impede the passage of any other vessel navigating within a narrow channel or fairway.
(d) A vessel shall not cross a narrow channel or fairway if such crossing impedes the passage of a vessel which can safely navigate only within that channel or fairway. The latter vessel shall use the danger signal prescribed in Rule 34(d) (33 CFR 83.34(d)) if in doubt as to the intention of the crossing vessel.
(e)(i) In a narrow channel or fairway when overtaking, the power-driven vessel intending to overtake another power-driven vessel shall indicate her intention by sounding the appropriate signal prescribed in Rule 34(c) (33 CFR 83.34(c) and take steps to permit safe passing. The power-driven vessel being overtaken, if in agreement, shall sound the same signal and may, if specifically agreed to, take steps to permit safe passing. If in doubt she shall sound the danger signal prescribed in Rule 34(d) (33 CFR 83.34(d)).
(ii) This Rule does not relieve the overtaking vessel of her obligation under Rule 13 (33 CFR 83.13).
(f) A vessel nearing a bend or an area of a narrow channel or fairway where other vessels may be obscured by an intervening obstruction shall navigate with particular alertness and caution and shall sound the appropriate signal prescribed in Rule 34(e) (33 CFR 83.34(e)).
(g) Any vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel.
(a) This Rule 10 applies to traffic separation schemes and does not relieve any vessel of her obligation under any other Rule in this part.
(b) A vessel using a traffic separation scheme shall:
(i) Proceed in the appropriate traffic lane in the general direction of traffic flow for that lane;
(ii) So far as practicable keep clear of a traffic separation line or separation zone;
(iii) Normally join or leave a traffic lane at the termination of the lane, but when joining or leaving from either side shall do so at as small an angle to the general direction of traffic flow as practicable.
(c) A vessel shall, so far as practicable, avoid crossing traffic lanes but if obliged to do so shall cross on a heading as nearly as practicable at right angles to the general direction of traffic flow.
(d)(i) A vessel shall not use an inshore traffic zone when she can safely use the appropriate traffic lane within the adjacent traffic separation scheme. However, vessels of less than twenty meters in length, sailing vessels, and vessels engaged in fishing may use the inshore traffic zone.
(ii) Notwithstanding paragraph (d)(i) of this Rule 10, a vessel may use an inshore traffic zone when en route to or from a port, offshore installation or structure, pilot station, or any other place situated within the inshore traffic zone, or to avoid immediate danger.
(e) A vessel other than a crossing vessel or a vessel joining or leaving a lane shall not normally enter a separation zone or cross a separation line except:
(i) In cases of emergency to avoid immediate danger; or
(ii) To engage in fishing within a separation zone.
(f) A vessel navigating in areas near the terminations of traffic separation schemes shall do so with particular caution.
(g) A vessel shall so far as practicable avoid anchoring in a traffic separation scheme or in areas near its terminations.
(h) A vessel not using a traffic separation scheme shall avoid it by as wide a margin as is practicable.
(i) A vessel engaged in fishing shall not impede the passage of any vessel following a traffic lane.
(j) A vessel of less than 20 meters in length or a sailing vessel shall not impede the safe passage of a power-driven vessel following a traffic lane.
(k) A vessel restricted in her ability to maneuver when engaged in an operation for the maintenance of safety of navigation in a traffic separation scheme is exempted from complying with this Rule to the extent necessary to carry out the operation.
(l) A vessel restricted in her ability to maneuver when engaged in an operation for the laying, servicing, or picking up of a submarine cable, within a traffic separation scheme, is exempted from complying with this Rule to the extent necessary to carry out the operation.
Rules in this subpart apply to vessels in sight of one another.
(a) When two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other as follows:
(i) When each has the wind on a different side, the vessel which has the wind on the port side shall keep out of the way of the other;
(ii) When both have the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel which is to leeward; and
(iii) If a vessel with the wind on the port side sees a vessel to windward and cannot determine with certainty whether the other vessel has the wind on the port or on the starboard side, she shall keep out of the way of the other.
(b) For the purpose of this Rule the windward side shall be deemed to be the side opposite to that on which the mainsail is carried or, in the case of a square-rigged vessel, the side opposite to that on which the largest fore-and-aft sail is carried.
(a) Notwithstanding anything contained in Rules 4 through 18 (33 CFR 83.04 through 83.18)), any vessel overtaking any other shall keep out of the way of the vessel being overtaken.
(b) A vessel shall be deemed to be overtaking when coming up with another vessel from a direction more than 22.5 degrees abaft her beam; that is, in such a position with reference to the vessel she is overtaking, that at night she would be able to see only the sternlight of that vessel but neither of her sidelights.
(c) When a vessel is in any doubt as to whether she is overtaking another, she shall assume that this is the case and act accordingly.
(d) Any subsequent alteration of the bearing between the two vessels shall not make the overtaking vessel a crossing vessel within the meaning of these Rules or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.
(a) Unless otherwise agreed, when two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other.
(b) Such a situation shall be deemed to exist when a vessel sees the other ahead or nearly ahead and by night she could see the masthead lights of the other in a line or nearly in a line or both sidelights and by day she observes the corresponding aspect of the other vessel.
(c) When a vessel is in any doubt as to whether such a situation exists she shall assume that it does exist and act accordingly.
(d) Notwithstanding paragraph (a) of this Rule 14, a power-driven vessel operating on the Great Lakes, Western Rivers, or waters specified by the Secretary, and proceeding downbound with a following current shall have the right-of-way over an upbound vessel,
(a) When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.
(b) Notwithstanding paragraph (a) of this Rule 15, on the Great Lakes, Western Rivers, or water specified by the Secretary, a power-driven vessel crossing a river shall keep out of the way of a power-driven vessel ascending or descending the river.
Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.
(a)(i) Where one of two vessels is to keep out of the way, the other shall keep her course and speed.
(ii) The latter vessel may, however, take action to avoid collision by her maneuver alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these Rules.
(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.
(c) A power-driven vessel which takes action in a crossing situation in accordance with paragraph (a)(ii) of this Rule 17, to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.
(d) This Rule does not relieve the give-way vessel of her obligation to keep out of the way.
Except where Rules 9, 10, and 13 (33 CFR 83.09, 83.10, and 83.13)) otherwise require:
(a) A power-driven vessel underway shall keep out of the way of:
(i) A vessel not under command;
(ii) A vessel restricted in her ability to maneuver;
(iii) A vessel engaged in fishing; and
(iv) a sailing vessel.
(b) A sailing vessel underway shall keep out of the way of:
(i) A vessel not under command;
(ii) A vessel restricted in her ability to maneuver; and
(iii) A vessel engaged in fishing.
(c) A vessel engaged in fishing when underway shall, so far as possible, keep out of the way of:
(i) A vessel not under command; and
(ii) A vessel restricted in her ability to maneuver.
(d) [Reserved].
(e) A seaplane on the water shall, in general, keep well clear of all vessels and avoid impeding their navigation. In circumstances, however, where risk of collision exists, she shall comply with the Rules of this Part.
(f)(i) A WIG craft shall when taking off, landing and in flight near the surface, keep well clear of all other vessels and avoid impeding their navigation;
(ii) A WIG craft operating on the water surface shall comply with the Rules of this Part as a power-driven vessel.
(a) This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility.
(b) Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate maneuver.
(c) Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with Rules 4 through 10 (33 CFR 83.04 through 83.10)).
(d) A vessel which detects by radar alone the presence of another vessel shall determine if a close-quarters situation is developing or risk of collision exists. If so, she shall take avoiding action in ample time, provided that when such action consists of an alteration of course, so far as possible the following shall be avoided:
(i) An alteration of course to port for a vessel forward of the beam, other than for a vessel being overtaken; and
(ii) An alteration of course toward a vessel abeam or abaft the beam.
(e) Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on course. She shall if necessary take all her way off and, in any event, navigate with extreme caution until danger of collision is over.
(a) Rules in this part shall be complied with in all weathers.
(b) The Rules concerning lights shall be complied with from sunset to sunrise, and during such times no other lights shall be exhibited, except such lights as cannot be mistaken for the lights specified in these Rules or do not impair their visibility or distinctive character, or interfere with the keeping of a proper look-out.
(c) The lights prescribed by these Rules shall, if carried, also be exhibited from sunrise to sunset in restricted visibility and may be exhibited in all other circumstances when it is deemed necessary.
(d) The Rules concerning shapes shall be complied with by day.
(e) The lights and shapes specified in these Rules shall comply with the provisions of Annex I of these Rules (33 CFR part 84).
(f) A vessel's navigation lights and shapes may be lowered if necessary to pass under a bridge.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
The lights prescribed in these Rules shall have an intensity as specified in Annex I to these Rules (33 CFR part 84), so as to be visible at the following minimum ranges:
(a) In a vessel of 50 meters or more in length:
(b) In a vessel of 12 meters or more in length but less than 50 meters in length:
(c) In a vessel of less than 12 meters in length:
(d) In an inconspicuous, partly submerged vessel or objects being towed:
(a) A power-driven vessel underway shall exhibit:
(i) A masthead light forward;
(ii) A second masthead light abaft of and higher than the forward one; except that a vessel of less than 50 meters in length shall not be obliged to exhibit such light but may do so;
(iii) Sidelights; and
(iv) A sternlight.
(b) An air-cushion vessel when operating in the non-displacement mode shall, in addition to the lights prescribed in paragraph (a) of this Rule 23, exhibit an all-round flashing yellow light where it can best be seen.
(c) A WIG craft only when taking off, landing and in flight near the surface shall, in addition to the lights prescribed in paragraph (a) of this Rule 23, exhibit a high intensity all-round flashing red light.
(d) A power-driven vessel of less than 12 meters in length may, in lieu of the lights prescribed in paragraph (a) of this Rule 23, exhibit an all-round white light and sidelights.
(e) A power-driven vessel when operating on the Great Lakes may carry an all-round white light in lieu of the second masthead light and sternlight prescribed in paragraph (a) of this Rule 23. The light shall be carried in the position of the second masthead light and be visible at the same minimum range.
(a) A power-driven vessel when towing astern shall exhibit:
(i) Instead of the light prescribed either in Rule 23(a)(i) or 23(a)(ii), two masthead lights in a vertical line. When the length of the tow, measuring from the stern of the towing vessel to the after end of the tow exceeds 200 meters, three such lights in a vertical line;
(ii) Sidelights;
(iii) A sternlight;
(iv) A towing light in a vertical line above the sternlight; and
(v) When the length of the tow exceeds 200 meters, a diamond shape where it can best be seen.
(b) When a pushing vessel and a vessel being pushed ahead are rigidly connected in a composite unit they shall be regarded as a power-driven vessel and exhibit the lights prescribed in Rule 23 (33 CFR 83.23).
(c) A power-driven vessel when pushing ahead or towing alongside, except as required by paragraphs (b) and (i) of this Rule 24, shall exhibit:
(i) Instead of the light prescribed either in Rule 23(a)(i) or 23(a)(ii), two masthead lights in a vertical line;
(ii) Sidelights;
(iii) Two towing lights in a vertical line.
(d) A power-driven vessel to which paragraphs (a) or (c) of this Rule 24 apply shall also comply with Rule 23(a)(i) and 23(a)(ii).
(e) A vessel or object other than those referred to in paragraph (g) of this Rule 24 being towed shall exhibit:
(i) Sidelights;
(ii) A sternlight; and
(iii) When the length of the tow exceeds 200 meters, a diamond shape where it can best be seen.
(f) Provided that any number of vessels being towed alongside or pushed in a group shall be lighted as one vessel, except as provided in paragraph (f)(iii) of this Rule 24—
(i) A vessel being pushed ahead, not being part of a composite unit, shall exhibit at the forward end, sidelights and a special flashing light;
(ii) A vessel being towed alongside shall exhibit a sternlight and at the forward end, sidelights and a special flashing light; and
(iii) When vessels are towed alongside on both sides of the towing vessels a sternlight shall be exhibited on the stern of the outboard vessel on each side of the towing vessel, and a single set of sidelights as far forward and as far outboard as is practicable, and a single special flashing light.
(g) An inconspicuous, partly submerged vessel or object, or combination of such vessels or objects being towed, shall exhibit:
(i) If it is less than 25 meters in breadth, one all-round white light at or near each end;
(ii) If it is 25 meters or more in breadth, four all-round white lights to mark its length and breadth;
(iii) If it exceeds 100 meters in length, additional all-round white lights between the lights prescribed in paragraphs (g)(i) and (ii) of this Rule 24 so that the distance between the lights shall not exceed 100 meters: Provided, that any vessels or objects being towed alongside each other shall be lighted as one vessel or object;
(iv) A diamond shape at or near the aftermost extremity of the last vessel or object being towed;
(v) The towing vessel may direct a searchlight in the direction of the tow to indicate its presence to an approaching vessel.
(h) Where from any sufficient cause it is impracticable for a vessel or object being towed to exhibit the lights prescribed in paragraph (e) or (g) of this Rule 24, all possible measures shall be taken to light the vessel or object towed or at least to indicate the presence of the unlighted vessel or object.
(i) Notwithstanding paragraph (c) of this Rule 24, on the Western Rivers (except below the Huey P. Long Bridge on the Mississippi River) and on waters specified by the Secretary, a power-driven vessel when pushing ahead or towing alongside, except as paragraph (b) of this Rule 24 applies, shall exhibit:
(i) Sidelights; and
(ii) Two towing lights in a vertical line.
(j) Where from any sufficient cause it is impracticable for a vessel not normally engaged in towing operations to display the lights prescribed by paragraph (a), (c) or (i) of this Rule 24, such vessel shall not be required to exhibit those lights when engaged in towing another vessel in distress or otherwise in need of assistance. All possible measures shall be taken to indicate the nature of the relationship between the towing vessel and the vessel being assisted. The searchlight authorized by Rule 36 (33 CFR 83.36) may be used to illuminate the tow.
(k) The following barges shall display at night and if practicable in periods of restricted visibility the lights described in paragraph (m) of this Rule 24:
(i) Every barge projecting into a buoyed or restricted channel.
(ii) Every barge so moored that it reduces the available navigable width of any channel to less than 80 meters.
(iii) Barges moored in groups more than two barges wide or to a maximum width of over 25 meters.
(iv) Every barge not moored parallel to the bank or dock.
(l) Barges described in this Rule 24 paragraph (l) shall carry two unobstructed all-round white lights of an intensity to be visible for at least 1 nautical mile and meeting the technical requirements as prescribed in 33 CFR 84.15.
(m) A barge or group of barges at anchor or made fast to one or more mooring buoys or other similar device, in lieu of the provisions of Inland Navigation Rule 30, may carry unobstructed all-round white lights of an intensity to be visible for at least 1 nautical mile that meet the requirements of 33 CFR 84.15 and shall be arranged as follows:
(i) Any barge that projects from a group formation, shall be lighted on its outboard corners.
(ii) On a single barge moored in water where other vessels normally navigate on both sides of the barge, lights shall be placed to mark the corner extremities of the barge.
(iii) On barges moored in group formation, moored in water where other vessels normally navigate on both sides of the group, lights shall be placed to mark the corner extremities of the group.
(n) The following are exempt from the requirements of this section:
(i) A barge or group of barges moored in a slip or slough used primarily for mooring purposes.
(ii) A barge or group of barges moored behind a pierhead.
(iii) A barge less than 20 meters in length when moored in a special anchorage area designated in accordance with § 109.10 of this chapter.
(o) Barges moored in well-illuminated areas are exempt from the lighting requirements of this section. These areas are as follows:
(p) Dredge pipelines that are floating or supported on trestles shall display the following lights at night and in periods of restricted visibility.
(i) One row of yellow lights. The lights must be:
(1) Flashing 50 to 70 times per minute,
(2) Visible all around the horizon,
(3) Visible for at least 2 miles on a clear dark night,
(4) Not less than 1 and not more than 3.5 meters above the water,
(5) Approximately equally spaced, and
(6) Not more than 10 meters apart where the pipeline crosses a navigable channel. Where the pipeline does not cross a navigable channel the lights must be sufficient in number to clearly show the pipeline's length and course.
(ii) Two red lights at each end of the pipeline, including the ends in a channel where the pipeline is separated to allow vessels to pass (whether open or closed). The lights must be:
(1) Visible all around the horizon, and
(2) Visible for at least 2 miles on a clear dark night, and
(3) One meter apart in a vertical line with the lower light at the same height above the water as the flashing yellow light.
(a) A sailing vessel underway shall exhibit:
(i) Sidelights; and
(ii) A sternlight.
(b) In a sailing vessel of less than 20 meters in length the lights prescribed in paragraph (a) of this Rule 25 may be combined in one lantern carried at or near the top of the mast where it can best be seen.
(c) A sailing vessel underway may, in addition to the lights prescribed in paragraph (a) of this Rule 25, exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower green, but these lights shall not be exhibited in conjunction with the combined lantern permitted by paragraph (b) of this Rule 25.
(d)(i) A sailing vessel of less than 7 meters in length shall, if practicable, exhibit the lights prescribed in paragraph (a) or (b) of this Rule 25, but if she does not, she shall exhibit an all-round white light or have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.
(ii) A vessel under oars may exhibit the lights prescribed in this Rule for sailing vessels, but if she does not, she shall exhibit an all-round while light or have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.
(e) A vessel proceeding under sail when also being propelled by machinery shall exhibit forward where
(a) A vessel engaged in fishing, whether underway or at anchor, shall exhibit only the lights and shapes prescribed in this Rule.
(b) A vessel when engaged in trawling, by which is meant the dragging through the water of a dredge net or other apparatus used as a fishing appliance, shall exhibit:
(i) Two all-round lights in a vertical line, the upper being green and the lower white, or a shape consisting of two cones with their apexes together in a vertical line one above the other;
(ii) A masthead light abaft of and higher than the all-round green light; a vessel of less than 50 meters in length shall not be obliged to exhibit such a light but may do so; and
(iii) When making way through the water, in addition to the lights prescribed in this paragraph, sidelights and a sternlight.
(c) A vessel engaged in fishing, other than trawling, shall exhibit:
(i) Two all-round lights in a vertical line, the upper being red and the lower white, or a shape consisting of two cones with apexes together in a vertical line one above the other;
(ii) When there is outlying gear extending more than 150 meters horizontally from the vessel, an all-round white light or a cone apex upward in the direction of the gear; and
(iii) When making way through the water, in addition to the lights prescribed in this paragraph, sidelights and a sternlight.
(d) [Reserved].
(e) A vessel when not engaged in fishing shall not exhibit the lights or shapes prescribed in this Rule 26, but only those prescribed for a vessel of her length.
(f) Additional Signals for fishing vessels fishing in close proximity:
(i) The lights mentioned herein shall be placed where they can best be seen. They shall be at least 0.9 meter apart but at a lower level than lights prescribed in this Rule. The lights shall be visible all around the horizon at a distance of at least 1 mile but at a lesser distance from the lights prescribed by this Rule 26 (a) through (c) for fishing vessels.
(ii) Signals for trawlers
(1) Vessels when engaged in trawling, whether using demersal or pelagic gear, may exhibit:
(A) When shooting their nets: Two white lights in a vertical line;
(B) When hauling their nets: One white light over one red light in a vertical line;
(C) When a net has come fast upon an obstruction: Two red lights in a vertical line.
(2) Each vessel engaged in pair trawling may exhibit:
(A) By night, a searchlight directed forward and in the direction of the other vessel of the pair;
(B) When shooting or hauling their nets or when their nets have come fast upon an obstruction, the lights prescribed in paragraph (a) of this Rule 26.
(iii) Signals for purse seiners.
(1) Vessels engaged in fishing with purse seine gear may exhibit two yellow lights in a vertical line. These lights shall flash alternately every second and with equal light and occultation duration. These lights may be exhibited only when the vessel is hampered by its fishing gear.
(2) [Reserved].
(a) A vessel not under command shall exhibit:
(i) Two all-round red lights in a vertical line where they can best be seen;
(ii) Two balls or similar shapes in a vertical line where they can best be seen; and
(iii) When making way through the water, in addition to the lights prescribed in this paragraph, sidelights and a sternlight.
(b) A vessel restricted in her ability to maneuver, except a vessel engaged in mine clearance operations, shall exhibit:
(i) Three all-round lights in a vertical line where they can best be seen. The highest and lowest of these lights shall be red and the middle light shall be white;
(ii) Three shapes in a vertical line where they can best be seen. The highest and lowest of these shapes shall be balls and the middle one a diamond;
(iii) When making way through the water, masthead lights, sidelights and a sternlight, in addition to the lights prescribed in paragraph (b)(i) of this Rule 27; and
(iv) When at anchor, in addition to the lights or shapes prescribed in paragraphs (b)(i) and (ii) of this Rule 27, the light, lights or shapes prescribed in Rule 30 (33 CFR 83.30).
(c) A vessel engaged in a towing operation which severely restricts the towing vessel and her tow in their ability to deviate from their course shall, in addition to the lights or shapes prescribed in paragraphs (b)(i) and (ii) of this Rule 27, exhibit the lights or shapes prescribed in Rule 24 (33 CFR 83.24).
(d) A vessel engaged in dredging or underwater operations, when restricted in her ability to maneuver, shall exhibit the lights and shapes prescribed in paragraphs (b)(i), (ii), and (iii) of this Rule 27 and shall in addition, when an obstruction exists, exhibit:
(i) Two all-round red lights or two balls in a vertical line to indicate the side on which the obstruction exists;
(ii) Two all-round green lights or two diamonds in a vertical line to indicate the side on which another vessel may pass; and
(iii) When at anchor, the lights or shapes prescribed by this paragraph, instead of the lights or shape prescribed in Rule 30 (33 CFR 83.30) for anchored vessels.
(e) Whenever the size of a vessel engaged in diving operations makes it impracticable to exhibit all lights and shapes prescribed in paragraph (d) of this Rule 27, the following shall instead be exhibited:
(i) Three all-round lights in a vertical line where they can best be seen. The highest and lowest of these lights shall be red and the middle light shall be white;
(ii) A rigid replica of the international Code flag “A” not less than 1 meter in height. Measures shall be taken to insure its all-round visibility.
(f) A vessel engaged in mine clearance operations shall, in addition to the lights prescribed for a power-driven vessel in Rule 23 (33 CFR 83.23) or to the lights or shape prescribed for a vessel at anchor in Rule 30 (33 CFR 83.30), as appropriate, exhibit three all-round green lights or three balls. One of these lights or shapes shall be exhibited near the foremast head and one at each end of the fore yard. These lights or shapes indicate that it is dangerous for another vessel to approach within 1000 meters of the mine clearance vessel.
(g) A vessel of less than 12 meters in length, except when engaged in diving operations, is not required to exhibit the lights or shapes prescribed in this Rule.
(h) The signals prescribed in this Rule are not signals of vessels in distress and requiring assistance. Such signals are contained in Annex IV to these Rules (33 CFR part 88).
(i)(i) Law enforcement vessels may display a flashing blue light when engaged in direct law enforcement or public safety activities. This light must be located so that it does not interfere with the visibility of the vessel's navigation lights.
(ii) The blue light described in this section may be displayed by law
(j)(i) Vessels engaged in government sanctioned public safety activities, and commercial vessels performing similar functions, may display an alternately flashing red and yellow light signal. This identification light signal must be located so that it does not interfere with the visibility of the vessel's navigation lights. The identification light signal may be used only as an identification signal and conveys no special privilege. Vessels using the identification light signal during public safety activities must abide by the Inland Navigation Rules, and must not presume that the light or the exigency gives them precedence or right of way.
(ii) Public safety activities include but are not limited to patrolling marine parades, regattas, or special water celebrations; traffic control; salvage; firefighting; medical assistance; assisting disabled vessels; and search and rescue.
(a) A vessel engaged on pilotage duty shall exhibit:
(i) At or near the masthead, two all-round lights in a vertical line, the upper being white and the lower red; (ii) When underway, in addition, sidelights and a sternlight; and
(iii) When at anchor, in addition to the lights prescribed in paragraph (a)(i) of this Rule 29, the anchor light, lights, or shape prescribed in Rule 30 for anchored vessels.
(b) A pilot vessel when not engaged on pilotage duty shall exhibit the lights or shapes prescribed for a vessel of her length.
(a) A vessel at anchor shall exhibit where it can best be seen:
(i) In the fore part, an all-round white light or one ball; and
(ii) at or near the stern and at a lower level than the light prescribed in paragraph (a)(i) of this Rule 30, an all-round white light.
(b) A vessel of less than 50 meters in length may exhibit an all-round white light where it can best be seen instead of the lights prescribed in paragraph (a) of this Rule 30.
(c) A vessel at anchor may, and a vessel of 100 meters or more in length shall, also use the available working or equivalent lights to illuminate her decks.
(d) A vessel aground shall exhibit the lights prescribed in paragraph (a) or (b) of this Rule 30 and in addition, if practicable, where they can best be seen:
(i) Two all-round red lights in a vertical line; and
(ii) Three balls in a vertical line.
(e) A vessel of less than 7 meters in length, when at anchor, not in or near a narrow channel, fairway, anchorage, or where other vessels normally navigate, shall not be required to exhibit the lights or shape prescribed in paragraphs (a) and (b) of this Rule 30.
(f) A vessel of less than 12 meters in length when aground shall not be required to exhibit the lights or shapes prescribed in paragraphs (d)(i) and (ii) of this Rule 30.
(g) A vessel of less than 20 meters in length, when at anchor in a special anchorage area designated by the Coast Guard, shall not be required to exhibit the anchor lights and shapes required by this Rule 30.
Where it is impracticable for a seaplane or a WIG craft to exhibit lights and shapes of the characteristics or in the positions prescribed in the Rules of this part she shall exhibit lights and shapes as closely similar in characteristics and position as is possible.
(a) The word
(b) The term
(c) The term
(a) A vessel of 12 meters or more in length shall be provided with a whistle, a vessel of 20 meters or more in length shall be provided with a bell in addition to a whistle, and a vessel of 100 meters or more in length shall, in addition, be provided with a gong, the tone and sound of which cannot be confused with that of the bell. The whistle, bell and gong shall comply with the specifications in Annex III to these Rules (33 CFR part 86). The bell or gong or both may be replaced by other equipment having the same respective sound characteristics, provided that manual sounding of the prescribed signals shall always be possible.
(b) A vessel of less than 12 meters in length shall not be obliged to carry the sound signaling appliances prescribed in paragraph (a) of this Rule 33 but if she does not, she shall be provided with some other means of making an efficient sound signal.
(a) When power-driven vessels are in sight of one another and meeting or crossing at a distance within half a mile of each other, each vessel underway, when maneuvering as authorized or required by these Rules:
(i) Shall indicate that maneuver by the following signals on her whistle:
(ii) Upon hearing the one or two blast signal of the other shall, if in agreement, sound the same whistle signal and take the steps necessary to effect a safe passing. If, however, from any cause, the vessel doubts the safety of the proposed maneuver, she shall sound the danger signal specified in paragraph (d) of this Rule 34 and each vessel shall take appropriate precautionary action until a safe passing agreement is made.
(b) A vessel may supplement the whistle signals prescribed in paragraph (a) of this Rule 34 by light signals:
(i) These signals shall have the following significance:
(ii) The duration of each flash shall be about 1 second; and
(iii) The light used for this signal shall, if fitted, be one all-round white or yellow light, visible at a minimum range of 2 miles, synchronized with the whistle, and shall comply with the provisions of Annex I to these Rules (33 CFR part 84).
(c) When in sight of one another:
(i) A power-driven vessel intending to overtake another power-driven vessel shall indicate her intention by the following signals on her whistle:
(ii) The power-driven vessel about to be overtaken shall, if in agreement, sound a similar sound signal. If in doubt she shall sound the danger signal prescribed in paragraph (d) of this Rule 34.
(d) When vessels in sight of one another are approaching each other and
(e) A vessel nearing a bend or an area of a channel or fairway where other vessels may be obscured by an intervening obstruction shall sound one prolonged blast. This signal shall be answered with a prolonged blast by any approaching vessel that may be within hearing around the bend or behind the intervening obstruction.
(f) If whistles are fitted on a vessel at a distance apart of more than 100 meters, one whistle only shall be used for giving maneuvering and warning signals.
(g) When a power-driven vessel is leaving a dock or berth, she shall sound one prolonged blast.
(h) A vessel that reaches agreement with another vessel in a head-on, crossing, or overtaking situation, as for example, by using the radiotelephone as prescribed by the Vessel Bridge-to-Bridge Radiotelephone Act (85 Stat. 164; 33 U.S.C. 1201
In or near an area of restricted visibility, whether by day or night, the signals prescribed in this Rule 35 shall be used as follows:
(a) A power-driven vessel making way through the water shall sound at intervals of not more than 2 minutes one prolonged blast.
(b) A power-driven vessel underway but stopped and making no way through the water shall sound at intervals of not more than 2 minutes two prolonged blasts in succession with an interval of about 2 seconds between them.
(c) A vessel not under command; a vessel restricted in her ability to maneuver, whether underway or at anchor; a sailing vessel; a vessel engaged in fishing, whether underway or at anchor; and a vessel engaged in towing or pushing another vessel shall, instead of the signals prescribed in paragraphs (a) or (b) of this Rule 35, sound at intervals of not more than 2 minutes, three blasts in succession; namely, one prolonged followed by two short blasts.
(d) [Reserved].
(e) A vessel towed or if more than one vessel is towed the last vessel of the tow, if manned, shall at intervals of not more than 2 minutes sound four blasts in succession; namely, one prolonged followed by three short blasts. When practicable, this signal shall be made immediately after the signal made by the towing vessel.
(f) When a pushing vessel and a vessel being pushed ahead are rigidly connected in a composite unit they shall be regarded as a power-driven vessel and shall give the signals prescribed in paragraphs (a) or (b) of this Rule 35.
(g) A vessel at anchor shall at intervals of not more than 1 minute ring the bell rapidly for about 5 seconds. In a vessel of 100 meters or more in length the bell shall be sounded in the forepart of the vessel and immediately after the ringing of the bell the gong shall be sounded rapidly for about 5 seconds in the after part of the vessel. A vessel at anchor may in addition sound three blasts in succession; namely, one short, one prolonged and one short blast, to give warning of her position and of the possibility of collision to an approaching vessel.
(h) A vessel aground shall give the bell signal and if required the gong signal prescribed in paragraph (f) of this Rule 35 and shall, in addition, give three separate and distinct strokes on the bell immediately before and after the rapid ringing of the bell. A vessel aground may in addition sound an appropriate whistle signal.
(i) A vessel of 12 meters or more but less than 20 meters in length shall not be obliged to give the bell signals prescribed in paragraphs (g) and (h) of this Rule 35. However, if she does not, she shall make some other efficient sound signal at intervals of not more than 2 minutes.
(j) A vessel of less than 12 meters in length shall not be obliged to give the above-mentioned signals but, if she does not, shall make some other efficient sound signal at intervals of not more than 2 minutes.
(k) A pilot vessel when engaged on pilotage duty may in addition to the signals prescribed in paragraphs (a), (b), or (g) of this Rule 35 sound an identity signal consisting of four short blasts.
(l) The following vessels shall not be required to sound signals as prescribed in paragraph (g) of this Rule 35 when anchored in a special anchorage area designated by the Coast Guard:
(i) A vessel of less than 20 meters in length; and
(ii) A barge, canal boat, scow, or other nondescript craft.
If necessary to attract the attention of another vessel, any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these Rules, or may direct the beam of her searchlight in the direction of the danger, in such a way as not to embarrass any vessel.
When a vessel is in distress and requires assistance she shall use or exhibit the signals described in Annex IV to these Rules (33 CFR part 88).
Any vessel or class of vessels, the keel of which is laid or which is at a corresponding stage of construction before December 24, 1980, provided that she complies with the requirements of—
(a) The Act of June 7, 1897 (30 Stat. 96), as amended (33 U.S.C. 154-232) for vessels navigating the waters subject to that statute;
(b) Section 4233 of the Revised Statutes (33 U.S.C. 301-356) for vessels navigating the waters subject to that statute;
(c) The Act of February 8, 1895 (28 Stat. 645), as amended (33 U.S.C. 241-295) for vessels navigating the waters subject to that statute; or
(d) Sections 3, 4, and 5 of the Act of April 25, 1940 (54 Stat. 163), as amended (46 U.S.C. 526b, c, and d) for motorboats navigating the waters subject to that statute; shall be exempted from compliance with the technical Annexes to these Rules as follows:
(i) The installation of lights with ranges prescribed in Rule 22, until 4 years after the effective date of the Inland Navigational Rules Act of 1980 (Pub. L. 96-591), except that vessels of less than 20 meters in length are permanently exempt;
(ii) The installation of lights with color specifications as prescribed in Annex I to these Rules (33 CFR part 84), until 4 years after the effective date of the Inland Navigational Rules Act of 1980 (Pub. L. 96-591), except that vessels of less than 20 meters in length are permanently exempt;
(iii) The repositioning of lights as a result of conversion to metric units and rounding off measurement figures, are permanently exempt; and
(iv) The horizontal repositioning of masthead lights prescribed by Annex I to these Rules (33 CFR part 84):
(1) On vessels of less than 150 meters in length, permanent exemption.
(2) On vessels of 150 meters or more in length, until 9 years after the effective
(v) The restructuring or repositioning of all lights to meet the prescriptions of Annex I to these Rules (33 CFR part 86), until 9 years after the effective date of the Inland Navigational Rules Act of 1980 (Pub. L. 96-591);
(vi) power-driven vessels of 12 meters or more but less than 20 meters in length are permanently exempt from the provisions of Rule 23(a)(i) and (iv) (33 CFR 83.23(a)(i) and (iv) provided that, in place of these lights, the vessel exhibits a white light aft visible all round the horizon; and
(vii) the requirements for sound signal appliances prescribed in Annex III to these Rules (33 CFR part 86), until 9 years after the effective date of the Inland Navigational Rules Act of 1980 (Pub. L. 96-591).
2. Revise part 84 to read as follows:
33 U.S.C. 2071; Department of Homeland Security Delegation No. 0170.1.
(a) The term
(b)
The same formula expressed in pounds and knots is maximum speed in knots (kts) equal to exceeding 1.98 (lbs) 3.7▽0.1667 ; where ▽ = displacement corresponding to design waterline in pounds.
(c) The term
(d) The term
(a) On a power-driven vessel of 20 meters or more in length the masthead lights shall be placed as follows:
(i) The forward masthead light, or if only one masthead light is carried, then that light, at a height above the hull of not less than 5 meters, and, if the breadth of the vessel exceeds 5 meters, then at a height above the hull not less than such breadth, so however that the light need not be placed at a greater height above the hull than 8 meters;
(ii) When two masthead lights are carried the after one shall be at least 2 meters vertically higher than the forward one.
(b) The vertical separation of the masthead lights of power-driven vessels shall be such that in all normal conditions of trim the after light will be seen over and separate from the forward light at a distance of 1000 meters from the stem when viewed from water level.
(c) The masthead light of a power-driven vessel of 12 meters but less than 20 meters in length shall be placed at a height above the gunwale of not less than 2.5 meters.
(d) The masthead light, or the all-round light described in Rule 23(d) (33 CFR 83.23(d)), of a power-driven vessel of less than 12 meters in length shall be carried at least one meter higher than the sidelights.
(e) One of the two or three masthead lights prescribed for a power-driven vessel when engaged in towing or pushing another vessel shall be placed in the same position as either the forward masthead light or the after masthead light, provided that the lowest after masthead light shall be at least 2 meters vertically higher than the highest forward masthead light.
(f)(i) The masthead light or lights prescribed in Rule 23(a) shall be so placed as to be above and clear of all other lights and obstructions except as described in paragraph (f)(ii) of this section.
(ii) When it is impracticable to carry the all-round lights prescribed in Rule 27(b)(i) (33 CFR 83.27(b)(i)) below the masthead lights, they may be carried above the after masthead light(s) or vertically in between the forward masthead light(s) and after masthead light(s), provided that in the latter case the requirement of § 84.03(d) shall be complied with.
(g) The sidelights of a power-driven vessel shall be placed at least one meter lower than the forward masthead light. They shall not be so low as to be interfered with by deck lights.
(h) [Reserved].
(i) When the Rules prescribe two or three lights to be carried in a vertical line, they shall be spaced as follows:
(i) On a vessel of 20 meters in length or more such lights shall be spaced not less than 1 meter apart, and the lowest of these lights shall, except where a towing light is required, be placed at a height of not less than 4 meters above the hull;
(ii) On a vessel of less than 20 meters in length such lights shall be spaced not less than 1 meter apart and the lowest of these lights shall, except where a towing light is required, be placed at a height of not less than 2 meters above the gunwale;
(iii) When three lights are carried they shall be equally spaced.
(j) The lower of the two all-round lights prescribed for a vessel when engaged in fishing shall be a height above the sidelights not less than twice the distance between the two vertical lights.
(k) The forward anchor light prescribed in Rule 30(a)(i) (33 CFR 83.30(a)(i)), when two are carried, shall not be less than 4.5 meters above the after one. On a vessel of 50 meters or more in length this forward anchor light shall be placed at a height or not less than 6 meters above the hull.
(a) Except as specified in paragraph (e) of this section, when two masthead lights are prescribed for a power-driven vessel, the horizontal distance between them must not be less than one quarter of the length of the vessel but need not be more than 50 meters. The forward light must be placed not more than one half of the length of the vessel from the stem.
(b) On a power-driven vessel of 20 meters or more in length the sidelights shall not be placed in front of the forward masthead lights. They shall be placed at or near the side of the vessel.
(c) When the lights prescribed in Rule 27(b)(i) (33 CFR 83.27(b)(i)) are placed vertically between the forward masthead light(s) and the after masthead light(s) these all-round lights shall be placed at a horizontal distance of not less than 2 meters from the fore and aft
(d) When only one masthead light is prescribed for a power-driven vessel, this light must be exhibited forward of amidships. For a vessel of less than 20 meters in length, the vessel shall exhibit one masthead light as far forward as is practicable.
(e) On power-driven vessels 50 meters but less than 60 meters in length operated on the Western Rivers, and those waters specified in § 89.25 of this chapter, the horizontal distance between masthead lights shall not be less than 10 meters.
(a) The light indicating the direction of the outlying gear from a vessel engaged in fishing as prescribed in Rule 26(c)(ii) (33 CFR 83.26(c)(ii)) shall be placed at a horizontal distance of not less than 2 meters and not more than 6 meters away from the two all-round red and white lights. This light shall be placed not higher than the all-round white light prescribed in Rule 26(c)(i) (33 CFR 83.26(c)(i)) and not lower than the sidelights.
(b) The lights and shapes on a vessel engaged in dredging or underwater operations to indicate the obstructed side and/or the side on which it is safe to pass, as prescribed in Rule 27(d)(i) and (ii) (33 CFR 83.27(d)(i) and (ii)), shall be placed at the maximum practical horizontal distance, but in no case less than 2 meters, from the lights or shapes prescribed in Rule 27(b)(i) and (ii) (33 CFR 83.27(b)(i) and (ii)). In no case shall the upper of these lights or shapes be at a greater height than the lower of the three lights or shapes prescribed in Rule 27(b)(i) and (ii).
(a) The sidelights of vessels of 20 meters or more in length shall be fitted with mat black inboard screens and meet the requirements of § 84.09. On vessels of less than 20 meters in length, the sidelights, if necessary to meet the requirements of § 84.09, shall be fitted with mat black inboard screens. With a combined lantern, using a single vertical filament and a very narrow division between the green and red sections, external screens need not be fitted.
(b) On power-driven vessels less than 12 meters in length constructed after July 31, 1983, the masthead light, or the all-round light described in Rule 23(d) (33 CFR 83.23(d)) shall be screened to prevent direct illumination of the vessel forward of the operator's position.
(a) Shapes shall be black and of the following sizes:
(i) A ball shall have a diameter of not less than 0.6 meter;
(ii) A cone shall have a base diameter of not less than 0.6 meter and a height equal to its diameter;
(iii) A diamond shape shall consist of two cones (as defined in paragraph (a)(ii) of this section) having a common base.
(b) The vertical distance between shapes shall be at least 1.5 meter.
(c) In a vessel of less than 20 meters in length shapes of lesser dimensions but commensurate with the size of the vessel may be used and the distance apart may be correspondingly reduced.
(a) The chromaticity of all navigation lights shall conform to the following standards, which lie within the boundaries of the area of the diagram specified for each color by the International Commission on Illumination (CIE), in the “Colors of Light Signals”, which is incorporated by reference. It is Publication CIE No. 2.2. (TC-1.6), 1975, and is available from the Illumination Engineering Society, 345 East 47th Street, New York, NY 10017 and is available for inspection at the Coast Guard, Ocean Engineering Division (CG-432), 2100 2nd St. SW., Stop 7901, Washington, DC 20593-7901. It is also available for inspection 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:
(b) The boundaries of the area for each color are given by indicating the corner co-ordinates, which are as follows:
(i)
(ii)
(iii)
(iv)
(a) The minimum luminous intensity of lights shall be calculated by using the formula:
(a)(i) In the forward direction, sidelights as fitted on the vessel shall show the minimum required intensities. The intensities shall decrease to reach practical cut-off between 1 and 3 degrees outside the prescribed sectors.
(ii) For sternlights and masthead lights and at 22.5 degrees abaft the beam for sidelights, the minimum required intensities shall be maintained over the arc of the horizon up to 5 degrees within the limits of the sectors prescribed in Rule 21 (33 CFR 83.21). From 5 degrees within the prescribed sectors the intensity may decrease by 50 percent up to the prescribed limits; it shall decrease steadily to reach practical cut-off at not more than 5 degrees outside the prescribed sectors.
(b) All-round lights shall be so located as not to be obscured by masts, topmasts or structures within angular sectors of more than 6 degrees, except anchor lights prescribed in Rule 30 (33 CFR 83.30), which need not be placed at an impracticable height above the hull, and the all-round white light described in Rule 23(e) (33 CFR 83.23(e)), which may not be obscured at all.
(c) If it is impracticable to comply with paragraph (b) of this section by exhibiting only one all-round light, two all-round lights shall be used suitably positioned or screened to appear, as far as practicable, as one light at a minimum distance of one nautical mile.
Note to paragraph (c) of this section: Tow unscreened all-round lights that are 1.28 meters apart or less will appear as one light to the naked eye at a distance of one nautical mile.
(a) The vertical sectors of electric lights as fitted, with the exception of lights on sailing vessels underway and on unmanned barges, shall ensure that:
(i) At least the required minimum intensity is maintained at all angles from 5 degrees above to 5 degrees below the horizontal;
(ii) At least 60 percent of the required minimum intensity is maintained from 7.5 degrees above to 7.5 degrees below the horizontal.
(b) In the case of sailing vessels underway the vertical sectors of electric lights as fitted shall ensure that:
(i) At least the required minimum intensity is maintained at all angles from 5 degrees above to 5 degrees below the horizontal;
(ii) At least 50 percent of the required minimum intensity is maintained from 25 degrees above to 25 degrees below the horizontal.
(c) In the case of unmanned barges the minimum required intensity of electric lights as fitted shall be maintained on the horizontal.
(d) In the case of lights other than electric lights these specifications shall be met as closely as possible
Non-electric lights shall so far as practicable comply with the minimum intensities, as specified in the Table given in § 84.08.
Notwithstanding the provisions of § 84.02(f), the maneuvering light described in Rule 34(b) (33 CFR 83.34(b)) shall be placed approximately in the same fore and aft vertical plane as the masthead light or lights and, where practicable, at a minimum height of one-half meter vertically above the forward masthead light, provided that it shall be carried not less than one-half meter vertically above or below the after masthead light. On a vessel where only one masthead light is carried the maneuvering light, if fitted, shall be carried where it can best be seen, not less than one-half meter vertically apart from the masthead light.
(a) The masthead light of high-speed craft may be placed at a height related to the breadth of the craft lower than that prescribed in § 84.02(a)(i), provided that the base angle of the isosceles triangle formed by the sidelights and masthead light, when seen in end elevation, is not less than 27°.
(b) On high-speed craft of 50 meters or more in length, the vertical separation between foremast and mainmast light of 4.5 meters required by § 84.02(k) may be modified provided that such distance shall not be less than the value determined by the following formula:
The construction of lights and shapes and the installation of lights on board the vessel must satisfy the Commandant, U.S. Coast Guard.
3. The authority citation for part 85 is revised to read as follows:
33 U.S.C. 2071.
4. Redesignate § 85.1 as § 85.01
5. Remove and reserve newly redesignated § 85.01.
6. Remove §§ 85.3 and 85.5.
7. Revise part 86 to read as follows:
33 U.S.C. 2071.
(a)
(i) 70-200 Hz, for a vessel 200 meters or more in length;
(ii) 130-350 Hz, for a vessel 75 meters but less than 200 meters in length;
(iii) 250-700 Hz, for a vessel less than 75 meters in length.
(ii) A whistle shall be placed as high as practicable on a vessel, in order to reduce interception of the emitted sound by obstructions and also to minimize hearing damage risk to personnel. The sound pressure level of the vessel's own signal at listening posts shall not exceed 110 dB(A) and so far as practicable should not exceed 100 dB(A).
(g)
(ii) The whistles of a combined system shall:
(1) Be located at a distance apart of not more than 100 meters,
(2) Be sounded simultaneously,
(3) Each have a fundamental frequency different from those of the others by at least 10 Hz, and
(4) Have a tonal characteristic appropriate for the length of vessel which shall be evidenced by at least two-thirds of the whistles in the combined system having fundamental frequencies falling within the limits prescribed in paragraph (b) of this section, or if there are only two whistles in the combined system, by the higher fundamental frequency falling within the limits prescribed in paragraph (b) of this section.
If due to the presence of obstructions the sound field of a single whistle or of one of the whistles referred to in paragraph (f) of this section is likely to have a zone of greatly reduced signal level, a combined whistle system should be fitted so as to overcome this reduction.
(h)
(a)
(b)
8. Revise part 87 to read as follows:
The following signals, used or exhibited either together or separately, indicate distress and need of assistance:
(a) A gun or other explosive signal fired at intervals of about a minute.
(b) A continuous sounding with any fog-signaling apparatus;
(c) Rockets or shells, throwing red stars fired one at a time at short intervals;
(d) A signal made by any method consisting of the group . . . — — — . . . (SOS) in the Morse Code,
(e) A signal sent by radiotelephony consisting of the spoken word “Mayday”;
(f) The International Code Signal of distress indicated by N.C.
(g) A signal consisting of a square flag having above or below it a ball or anything resembling a ball;
(h) Flames on the vessel (as from a burning tar barrel, oil barrel, etc.);
(i) A rocket parachute flare or a hand flare showing a red light;
(j) A smoke signal giving off orange-colored smoke;
(k) Slowly and repeatedly raising and lowering arms outstretched to each side;
(l) A distress alert by means of digital selective calling (DSC) transmitted on:
(i) VHF channel 70, or
(ii) MF/HF on the frequencies 2187.5 kHz, 8414.5 kHz, 4207.5 kHz, 6312 kHz, 12577 kHz or 16804.5 kHz;
(m) A ship-to-shore distress alert transmitted by the ship's Inmarsat or other mobile satellite service provider ship earth station;
(n) Signals transmitted by emergency position-indicating radio beacons;
(o) Signals transmitted by radiocommunication systems, including survival craft radar transponders meeting the requirements of 47 CFR 80.1095.
(p) A high intensity white light flashing at regular intervals from 50 to 70 times per minute.
The use or exhibition of any of the foregoing signals except for the purpose of indicating distress and need of assistance and the use of other signals which may be confused with any of the above signals is prohibited.
Attention is drawn to the relevant sections of the International Code of Signals, the International Aeronautical and Maritime Search and Rescue Manual, Volume III, the International Telecommunication Union Radio Regulations and the following signals:
(a) A piece of orange-colored canvas with either a black square and circle or other appropriate symbol (for identification from the air);
(b) A dye marker.
9. The Authority citation for part 88 continues to read as follows:
33 U.S.C. 2071.
10. Remove and reserve § 88.01.
11. Remove §§ 88.03 through 88.15.